State of Hawaii v. Trump

Filing 65

MOTION for Temporary Restraining Order Neal Katyal appearing for Plaintiffs Ismail Elshikh, State of Hawaii (Attachments: # 1 Memorandum in Support of Plaintiffs' Motion for Temporary Restraining Order, # 2 Certificate of Word Count, # 3 Proposed Temporary Restraining Order, # 4 Certificate of Service)(Katyal, Neal)

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

STATE OF HAWAI‘I and ISMAIL ELSHIKH,
Plaintiffs,

v.

DONALD J. TRUMP, in his official capacity as
President of the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security;
U.S. DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED STATES
OF AMERICA,

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

Defendants.

MEMORANDUM IN SUPPORT OF PLAINTIFFS’
MOTION FOR TEMPORARY RESTRAINING ORDER

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
INTRODUCTION .....................................................................................................1
FACTUAL BACKGROUND....................................................................................3
A.

Candidate Trump Calls For A Muslim Ban ...............................................3

B.

President Trump Implements His First Discriminatory Ban......................5

C.

Courts Enjoin The President’s First Executive Order................................8

D.

The President Issues A Second Executive Order .....................................10

E.

The New Executive Order Harms Hawaii and Its Citizens......................14

F.

The New Executive Order Harms Ismail Elshikh....................................19

STANDARD OF REVIEW .....................................................................................22
ARGUMENT ...........................................................................................................22
A.

Hawai‘i Is Likely To Succeed On The Merits Of Its Claims...................23
1.

The Revised Order Violates The Immigration And
Nationality Act ...............................................................................24
a.
b.

2.

The revised Executive Order violates the INA’s
prohibition on nationality-based discrimination..................25
The revised Executive Order exceeds the
President’s authority under 8 U.S.C. § 1182(f) ................... 29

The Revised Order Is Unconstitutional..........................................37
a.

The revised Executive Order violates Due
Process .................................................................................38

b.

The revised Executive Order violates the
Constitution’s protections against religious
discrimination ......................................................................40
i

TABLE OF CONTENTS—Continued
Page
B.

The Plaintiffs Will Suffer Irreparable Harm If Relief Is Not
Granted .....................................................................................................45

C.

The Balance Of The Equities And Public Interest Favor
Relief ........................................................................................................49

D.

The Court Should Issue A Nationwide Injunction ...................................50

CONCLUSION........................................................................................................51

ii

TABLE OF AUTHORITIES
Page(s)
CASES:
Abdullah v. I.N.S.,
184 F.3d 158 (2d Cir. 1999) ...............................................................................27
Abourezk v. Reagen,
785 F.2d 1043 (D.C. Cir. 1986), aff’d mem., 484 U.S. 1 (1987)............32, 33, 35
Access Fund v. U.S. Dep’t of Agriculture,
499 F.3d 1036 (9th Cir. 2007) ............................................................................41
Alfred L. Snapp & Son v. Puerto Rico,
458 U.S. 592 (1982)............................................................................................48
Ali v. Fed. Bureau of Prisons,
552 U.S. 214 (2008)............................................................................................37
Allende v. Shultz,
845 F.2d 1111 (1st Cir. 1988).............................................................................33
Am. Foreign Serv. Ass’n v. Garfinkel,
490 U.S. 153 (1989)............................................................................................24
Arizona v. United States,
132 S. Ct. 2492 (2012)........................................................................................25
Aziz v. Trump,
No. 1:17-cv-116, 2017 WL 580855 (E.D. Va., Feb. 13, 2017)................9, 10, 41
Bertrand v. Sava,
684 F.2d 204 (2d Cir. 1982) ...................................................................27, 28, 29
Bond v. United States,
134 S. Ct. 2077 (2014)........................................................................................24
Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006)............................................................................46
Circuit City Stores, Inc. v. Adams,
532 U.S. 105 (2001)............................................................................................37
iii

TABLE OF AUTHORITIES—Continued
Page(s)
Clinton v. City of New York,
524 U.S. 417 (1998)............................................................................................35
Earth Island Inst. v. Ruthenbeck,
490 F.3d 687 (9th Cir. 2006), rev’d in part on other grounds,
555 U.S. 488 (2009)............................................................................................50
Edwards v. Aguillard,
482 U.S. 578 (1987)......................................................................................41, 44
Elk Grove Unified School Dist. v. Newdow,
542 U.S. 1 (2004)................................................................................................46
Farris v. Seabrook,
677 F.3d 858 (9th Cir. 2012) ........................................................................23, 46
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)............................................................................................34
Freytag v. Commissioner,
501 U.S. 868 (1991)............................................................................................25
Galvan v. Press,
347 U.S. 522 (1954)............................................................................................25
Judulang v. Holder,
565 U.S. 42 (2011)..............................................................................................27
Kent v. Dulles,
358 U.S. 116 (1958)............................................................................................36
Kerry v. Din,
135 S. Ct. 2128 (2015).................................................................................passim
Kim Ho Ma v. Ashcroft,
257 F.3d 1095 (9th Cir. 2001) ............................................................................36
Kleindienst v. Mandel,
408 U.S. 753 (1972)............................................................................................39
iv

TABLE OF AUTHORITIES—Continued
Page(s)
Kwai Fun Wong v. United States,
373 F.3d 952 (9th Cir. 2004) ..............................................................................40
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,
45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds,
519 U.S. 1 (1996)................................................................................................26
Loughrin v. United States,
134 S. Ct. 2384 (2014)........................................................................................34
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ...............................................................................2
McCreary County v. Am. Civil Liberties Union,
545 U.S. 867 (2005)....................................................................40, 41, 42, 43, 44
Medellín v. Texas,
552 U.S. 491 (2008)............................................................................................34
Morrison v. Olson,
487 U.S. 654 (1988)............................................................................................43
New Motor Vehicle Bd. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977)..........................................................................................47
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997).....................................................................27, 29
Oracle USA, Inc. v. Rimini St., Inc.,
2016 WL 5213917 (9th Cir. Sept. 21, 2016) ......................................................47
Romero v. I.N.S.,
39 F.3d 977 (9th Cir. 1994) ................................................................................36
Tashima v. Admin. Office of U.S. Courts,
967 F.2d 1264 (9th Cir. 1992) ............................................................................36

v

TABLE OF AUTHORITIES—Continued
Page(s)
Texas v. United States,
809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court,
136 S. Ct. 2271 (2016)..................................................................................47, 50
United Dominion Indus. v. United States,
532 U.S. 822 (2001)............................................................................................29
United States v. Juvenile Male,
670 F.3d 999 (9th Cir. 2012) ..............................................................................29
United States v. Windsor,
133 S. Ct. 2675 (2013)........................................................................................47
United States v. Witkovich,
353 U.S. 194 (1957)................................................................................35, 36, 37
Village of Arlington Heights v. Metro. Housing Dev. Corp.,
429 U.S. 252 (1977)............................................................................................40
Washington v. Trump,
No. 17-35105 (9th Cir. Feb. 4, 2017) ...............................................................2, 9
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) .....................................................................passim
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001)......................................................................................34, 35
Winter v. Nat. Res. Def. Council,
555 U.S. 7 (2008)................................................................................................23
Wong Wing Hang v. Immigration & Naturalization Serv.,
360 F.2d 715 (2d Cir. 1966) .........................................................................27, 29
Wyoming v. Oklahoma,
502 U.S. 437 (1992)............................................................................................47
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952)............................................................................................26
vi

TABLE OF AUTHORITIES—Continued
Page(s)
Zadvydas v. Davis,
533 U.S. 678 (2001)............................................................................................36
Zivotofsky v. Clinton,
566 U.S. 189 (2012)............................................................................................25
STATUTES:
8 U.S.C. §  1152(a)(1) .............................................................................................. 28
8 U.S.C. §  1152(a)(1)(A) ............................................................................25, 26, 28
8 U.S.C. §  1153(a)................................................................................................... 33
8 U.S.C. §  1182(a).......................................................................................32, 33, 37
8 U.S.C. §  1182(a)(1) .............................................................................................. 33
8 U.S.C. §  1182(a)(3)(B)......................................................................................... 30
8 U.S.C. §  1182(a)(3)(B)(i)(I)-(II) .......................................................................... 30
8 U.S.C. §  1182(a)(3)(B)(i)(V)-(VI) ....................................................................... 30
8 U.S.C. § 1182(a)(4)(D)(i) .....................................................................................33
8 U.S.C. §  1182(a)(27) ............................................................................................ 32
8 U.S.C. §  1182(a)(28) ......................................................................................32, 33
8 U.S.C. §  1182(f) ............................................................................................passim
8 U.S.C. §  1184(a)................................................................................................... 35
8 U.S.C. §  1185(a).................................................................................28, 29, 35, 49
22 U.S.C. §  2691(a)................................................................................................. 33
Administrative Procedure Act..................................................................................50
Chinese Exclusion Acts .....................................................................................22, 51
vii

TABLE OF AUTHORITIES—Continued
Page(s)
Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, div. O,
§  203 (2015) (codified at 8 U.S.C. §  1187(a)(12)(D)(ii)) ................................. 31
Immigration and Naturalization Act ............................................................24, 25, 37
Religious Freedom Restoration Act.........................................................................40
USA PATRIOT Act, Pub. L. No. 107-56, § 411 (2001) .........................................31
Voting Rights Act ....................................................................................................26
CONSTITUTIONAL PROVISIONS:
U.S. Const. art. I.....................................................................................25, 35, 46, 50
U.S. Const. amend. I ................................................................................................46
U.S. Const. amend. V...............................................................................................38
STATE STATUTES
Haw. Rev. Stat. §  378-2(1)...................................................................................... 46
Haw. Rev. Stat. Ann. § 381-1 ..................................................................................16
Haw. Rev. Stat. Ann. §  489-3 ...........................................................................16, 46
Haw. Rev. Stat. Ann. §  515-3 ...........................................................................16, 46
OTHER AUTHORITIES:
H.R. Rep. No. 89-745 (1965)...................................................................................26
H.R. Rep. No. 104-469 (1996).................................................................................31
OTHER AUTHORITIES:
Cong. Research Serv., Executive Authority to Exclude Aliens: In
Brief 6-10 (Jan. 23, 2017).............................................................................29, 35

viii

INTRODUCTION
One week after taking office, President Donald Trump fulfilled his campaign
promise—made openly in speeches, in interviews, and through surrogates—to
implement a “Muslim ban.” He issued an Executive Order that barred every
national of seven Muslim-majority countries from entering the United States and
shut down all refugee admissions, with any exceptions entrusted to standardless
executive discretion. During the televised signing of that Order, President Trump
read the Order’s title, looked up at the camera and remarked: “We all know what
that means.”
We do. Courts across the country swiftly concluded that the thinly veiled
Muslim ban was unlikely to pass constitutional muster. And while the President
signed a revised version on March 6—this time in private—we still know exactly
what it means. It is another attempt by the Administration to enact a
discriminatory ban that goes against the fundamental teachings of our Constitution
and our immigration laws. Although it is cloaked in ostensibly neutral terms, the
new Executive Order admits, strikingly, that it was altered for the purpose of
“avoid[ing] * * * litigation.”
Nothing of substance has changed. There is the same blanket ban on entry
from Muslim-majority countries (minus one), the same sweeping shutdown of
refugee admissions (absent one exception), and the same lawless warren of
1

exceptions and waivers. The courts did not tolerate the Administration’s last
attempt to hoodwink the judiciary, and they should not countenance this one.
The Government has said that the President’s power in this area must be
“unreviewable”—indeed, that “[j]udicial second-guessing of the President’s
national security determination in itself imposes substantial harm.” Mot. for
Administrative Stay 2, 21, Washington v. Trump, No. 17-35105, 2017 WL 655437
(9th Cir. Feb. 4, 2017) (emphasis added). But denying the judicial role in saying
“what the law is” conflicts with one of our most venerated constitutional
precedents. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). In these
circumstances, it is also disingenuous at best. Congress has considered and
addressed the precise concerns of the Order through legislation; the Order relies on
decades-old information and examples of terrorist acts planned by nationals of a
country the ban no longer covers; and the U.S. Department of Homeland Security
itself has acknowledged that the targeted countries are not the source of the
majority of the terror threat.
The confluence of factors surrounding this Executive Order is unique. To
find that the immigration laws and the Constitution bar this particular presidential
action means only this: In the immigration context, where a President has pointed
to no changed circumstances, and where Congress has legislated a different
response to the threat to which he has pointed, and where the fit between the
2

President’s stated purposes and the announced policy is so poor that his own
Administration has questioned it, and where the President himself has repeatedly
and publicly espoused an improper motive for his actions, the President’s action
must be invalidated.
FACTUAL BACKGROUND
A. Candidate Trump Calls For A Muslim Ban.
Then-candidate Donald Trump made it crystal clear throughout his
presidential campaign that if elected, he planned to bar Muslims from the United
States. Shortly after the Paris attacks in December 2015, Mr. Trump issued a press
release calling for “a total and complete shutdown of Muslims entering the United
States until our country’s representatives can figure out what is going on.” Compl.
¶ 38 & Ex. 6. When questioned about the idea shortly thereafter, he compared it to
President Roosevelt’s race-based internment of the Japanese during World War II,
saying, “[Roosevelt] did the same thing.” Compl. ¶ 39. And when asked what the
customs process would look like for a Muslim non-citizen attempting to enter the
United States, Mr. Trump said: “[T]hey would say, are you Muslim?” An
interviewer responded: “And if they said ‘yes,’ they would not be allowed into the
country.” Mr. Trump said: “That’s correct.” Id. In March of 2016, Mr. Trump
discussed his motivations. During an interview he said, “I think Islam hates us.”
Compl. ¶ 41.
3

Later, as the presumptive Republican nominee, Mr. Trump began using
facially neutral language to describe the Muslim ban. He described his proposal as
stopping immigration from countries “where there’s a proven history of terrorism.”
Compl. ¶ 42. Lest he appear to be backing down, Mr. Trump also made clear that
his country-based plan was simply a repackaging of his proposed Muslim ban.
Asked in July of 2016 whether he was retracting his call for “a total and complete
shut-down of Muslim[]” immigration, he said: “I actually don’t think it’s a
rollback. In fact, you could say it’s an expansion.” Compl. ¶ ¶ 38, 44 & Exs. 6, 7.
He explained: “People were so upset when I used the word Muslim. ‘Oh, you
can’t use the word Muslim * * *.’ And I’m okay with that, because I’m talking
territory instead of Muslim.” Id.
Throughout the campaign, Mr. Trump also made clear that his plans
extended to disfavoring Muslim refugees while favoring their Christian
counterparts. In July 2015, he said: “If you’re * * * a Christian, you cannot come
into this country, and they’re the ones that are being decimated. If you are Islamic
* * * it’s hard to believe, you can come in so easily.” Compl. ¶ 36.
After his election, the President-Elect signaled that he would not retreat from
his Muslim ban. On December 21, 2016, he was asked whether he had decided “to
rethink or re-evaluate [his] plans to create a Muslim registry or ban Muslim

4

immigration to the United States.” He replied: “You know my plans. All along,
I’ve been proven to be right.” Compl. ¶ 46.
B. President Trump Implements His First Discriminatory Ban.
A week after being sworn in as President, Donald Trump fulfilled his
ominous campaign promise. On January 27, 2017, he signed an Executive Order
entitled “Protecting the Nation From Foreign Terrorist Entry into the United
States.” Compl. ¶¶ 2, 49 & Ex. 2. During the public signing of the Order,
President Trump read its title, looked up, and said: “We all know what that
means.” Compl. ¶ 51.
On the day the first Executive Order was released, the President made his
intentions even more explicit. He informed the Christian Broadcasting Network
that the Order’s refugee provision was designed to prioritize Christian over Muslim
refugees: “If you were a Muslim you could come in, but if you were a Christian, it
was almost impossible. * * * And I thought it was very, very unfair. So we are
going to help them.” Compl. ¶ 58. In a television interview the next day, one of
the President’s surrogates, Rudolph Giuliani, was even more explicit : “So when
[Donald Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He
said, ‘Put a commission together. Show me the right way to do it legally.’”
Compl. ¶ 59 & Ex. 8 (emphasis added).

5

The first version of President Trump’s Executive Order imposed two
sweeping restrictions. First, it banned nationals of seven Muslim-majority
countries— Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—from entering
the United States for a period of 90 days. Compl. ¶ 52. The first Executive Order
permitted the Secretaries of State and Homeland Security to make exceptions to
this ban where they deemed it “in the national interest.” Compl. ¶ 54. And it
instructed the Secretaries to “submit to the President the names of any additional
countries recommended for similar treatment” in the future. Compl. ¶ 55.
Second, the original Executive Order directed the Secretary of State to
suspend the U.S. Refugee Admissions Program for 120 days. Compl. ¶ 56.
Immigration officials could make exceptions to this ban, too, on a case-by-case
basis, where they determined that the refugees’ admission was in the “national
interest.” Compl. ¶ 56. The first Executive Order provided an example of such a
case: where “the person is a religious minority in his country of nationality facing
religious persecution.” Compl. ¶ 56. The Order also indefinitely suspended
refugee admissions from Syria. Compl. ¶ 57.
The first Executive Order immediately spurred widespread confusion, chaos,
and outrage. The application of the travel ban was sweeping: Over 100 individuals
were immediately detained at U.S. airports, and the Government revoked 60,000
visas within a period of a week. Compl. ¶ 64. Its precise scope, however, was ill6

defined. At first the Government said that the Order applied to lawful permanent
residents (“LPRs”); then the Secretary of Homeland Security said that LPRs were
exempt from the travel ban; then, days later, the White House Counsel “clarif[ied]”
that the Order did not apply to LPRs in the first place. Compl. ¶¶ 65, 68-70.
Meanwhile, thousands of diplomats, former diplomats, and legislators from
both parties spoke out against the ban, calling it inhumane and discriminatory.
Hundreds of State Department officials signed a memo stating that the Executive
Order “r[an] counter to core American values,” including “nondiscrimination,” and
that “[d]espite the Executive Order’s focus on them, a vanishingly small number of
terror attacks on U.S. soil have been committed by foreign nationals” here on
visas. Compl. ¶ 66 & Ex. 13. Senators John McCain (R-AZ) and Lindsey Graham
(R-SC) stated: “This executive order sends a signal, intended or not, that America
does not want Muslims coming into our country.” Compl. ¶ 67.
Critics also questioned the abrupt nature of the roll out, but the President
defended the timing as a national security necessity. On January 30, 2017,
President Trump tweeted: “If the ban were announced with a one week notice, the
‘bad’ would rush into our country during that week.” Compl. ¶ 60. On February
9, 2017, President Trump reiterated the point. He claimed he had sought a onemonth delay between signing and implementation, but was told by his advisors that

7

“you can’t do that because then people are gonna pour in before the toughness.”
Id.
C. Courts Enjoin The President’s First Executive Order.
Within hours of the first Executive Order’s issuance, individuals and entities
began filing lawsuits and habeas corpus actions challenging the Order as unlawful.
On January 30, 2017, the State of Washington (later joined by Minnesota) filed suit
in the Western District of Washington, arguing that the Order violated the Due
Process Clause and the Establishment Clause, along with a host of other
constitutional and statutory provisions. A few days later, the State of Hawai‘i
brought the present action.
On February 3, 2017, the District Court for the Western District of
Washington entered a nationwide temporary restraining order enjoining President
Trump and his Administration from enforcing the January 27 Executive Order.
Compl. ¶ 71. The Government immediately sought an emergency stay of that
injunction in the Ninth Circuit, arguing that the President has “unreviewable
authority to suspend the admission of any class of aliens,” and that “[j]udicial
second-guessing of the President’s national security determination in itself imposes
substantial harm.” Mot. for Administrative Stay 2, 21, Washington, supra, No. 1735105 (emphasis added).

8

On February 9, 2017, the Ninth Circuit denied the Government’s request for
a stay. Compl. ¶ 71. The Court of Appeals held that “[t]here is no precedent to
support” the Government’s claim that the Order was “unreviewab[le]”; this
contention, it said, “runs contrary to the fundamental structure of our constitutional
democracy.” Washington v. Trump, 847 F.3d 1151, 1161 (9th Cir. 2017) (per
curiam). The court also held that the Government was unlikely to succeed on the
merits of the States’ due process claim. It was “obvious,” the court explained, that
the first Executive Order impinged on the “due process rights” of several classes of
individuals, including “persons who are in the United States, even if unlawfully”;
“refugees”; and foreign nationals located abroad “who have a relationship with a
U.S. resident or an institution.” Id. at 1166. The court also noted “the serious
nature of the allegations the States have raised with respect to their religious
discrimination claims,” but found it unnecessary to resolve those claims at this
stage of the proceedings. Id. at 1164.
On February 13, 2017, the District Court for the Eastern District of Virginia
temporarily enjoined the Order on religious-discrimination grounds. Aziz v.
Trump, No. 1:17-cv-116, 2017 WL 580855 (E.D. Va. Feb. 13, 2017). Closely
examining the President’s past statements and the “ ‘sequence of events’ leading
up to the adoption of” the first Executive Order, the court concluded that the Order
appeared to be “animated by * * * the impermissible motive of * * * disfavoring
9

one religious group.” Id. at *8. It thus held that the plaintiffs in that case were
therefore “likely to succeed on an Establishment Clause claim.” Id. at *8-*9.
D. The President Issues A Second Executive Order.
Following its multiple defeats in the courts, the Government sought a stay of
appellate proceedings so that the President could “rescind the [first] Order and
replace it with a new, substantially revised” version. Compl. ¶ 71. Meanwhile, the
President ensured that his supporters would not doubt his continued commitment to
his campaign promises. On February 21, Stephen Miller, a Senior Advisor to the
President, explained during a televised interview that the revised Executive Order
would “have the same basic policy outcome” as the original version, and that any
changes would address “very technical issues that were brought up by the court.”
Compl. ¶ 74.
A few days later, a memo prepared by President Trump’s own
Administration severely undermined the purported national security rationale for
the original—and soon-to-be revised—Executive Order. On February 25, 2017, a
draft report published by the Department of Homeland Security (“DHS”)
concluded that citizenship was an “unlikely indicator” of terrorism threats against
the United States. Compl. ¶ 61. The draft DHS report also found that very few
individuals from the seven countries included in President Trump’s first Executive
Order had carried out or attempted to carry out terrorism activities in the United
10

States since 2011. Id. Specifically, the DHS report determined that 82 people had
been inspired by a foreign terrorist group to carry out or attempt to carry out an
attack in the United States during the time surveyed. Half were U.S. citizens born
in the United States, and the remaining persons were from 26 other countries. Id.
The country at the top of that list, Pakistan, was not included within the travel ban.
Id. Some of the countries included in the original and revised Executive Order’s
travel ban, such as Syria and Libya, were not countries-of-origin for any of the 82
individuals who had committed or attempted to commit terrorism crimes in the
United States since 2011. Id.
The DHS report did not alter the President’s course, but the demands of
public relations did. According to the President’s aides, the White House initially
planned to release the revised Order on March 1, but delayed the announcement to
avoid “undercut[ting] the favorable coverage” the President was receiving for a
recent speech to Congress. Compl. ¶ 74.
The President finally issued a revised Executive Order on March 6, 2017.
Compl. ¶ 72 & Ex. 1. Consistent with Mr. Miller’s forecast, the substance of the
revised Order, entitled “Protecting the Nation From Foreign Terrorist Entry into
the United States,” does not differ from the original. It contains both of the bans
the President had initially imposed—the sweeping travel ban on nationals of

11

several Muslim-majority countries, and the blanket suspension of the refugee
program—subject to a handful of changes designed to “avoid * * * litigation.” Id.
First, Section 2 of the new Executive Order once again suspends “nationals
of” several Muslim-majority countries from “entry into the United States” for a
period of 90 days. Order § 2(c). As revised, the Order includes one fewer country
than the original: Because of the “close cooperative relationship” between the
United States and the Iraqi government, the Order says, Iraq no longer merits
inclusion on the list. Id. § 1(g). The Order also expressly exempts individuals who
are already present in the United States, or who have already been granted visas or
other lawful status. Id. § 3(a)-(b). Otherwise, the Order bars entry by nationals of
the six designated Muslim-majority countries unless they qualify for a “[c]ase-bycase waiver” deemed to be “in the national interest.” Id. § 3(c); see id. (offering
examples of cases in which waivers “could be appropriate”).
Second, Section 6 of the new Executive Order again suspends the U.S.
Refugee Admissions Program for a period of 120 days. Id. § 6(a). As in the
original Order, individuals may be exempted from this prohibition if the
Secretaries of State and Homeland Security determine, “on a case-by-case basis,”
that admission would be “in the national interest.” Id. § 6(c). Unlike the original,
this Order does not expressly list an individual’s status as a “religious minority” as

12

a circumstance justifying such a waiver, and it does not include a Syria-specific
ban on refugees.
The March 6 Executive Order also elaborates on the justification for its
restrictions. It states that its aim is to prevent “the entry into the United States of
foreign nationals who may commit, aid, or support acts of terrorism.” Id. § 1(j). It
describes the ban on entry by nationals of the six designated countries as a step
intended “to prevent infiltration by foreign terrorists. Id. §§ 1(d)-(e), 2(c).
Likewise, the Order justifies its refugee ban on the ground that “individuals
seeking admission as refugees” may “pose a threat to the security and welfare of
the United States.” Id. § 6(a).
Section 1(h) of the revised Executive Order identifies two concrete examples
of persons who have committed terrorism-related crimes in the United States, after
either entering the country “legally on visas” or entering “as refugees”: “[I]n
January 2013, two Iraqi nationals admitted to the United States as refugees in 2009
were sentenced to 40 years and to life in prison, respectively, for multiple
terrorism-related offenses.” Id. § 1(h). “And in October 2014, a native of Somalia
who had been brought to the United States as a child refugee and later became a
naturalized United States citizen was sentenced to 30 years in prison for attempting
to use a weapon of mass destruction[.]” Id. Iraq is no longer included in the ambit

13

of the travel ban, id., and the Order states that a waiver could be granted for a
foreign national that is a “young child.” Id. § 3(c)(v).
E. The New Executive Order Harms Hawai‘i and Its Citizens.
The revised Executive Order inflicts numerous injuries on the State of
Hawai‘i and its citizens.
First, the Order harms the State’s university system. The University of
Hawai‘i depends on talent from around the world, including from Muslim-majority
countries, to enrich its student body and educational environment. The University
currently has twenty-three graduate students, several permanent faculty members,
and twenty-nine visiting faculty members from the six countries designated in the
revised March 6 Executive Order. Ex. D-1, Supp. Dec. of R. Dickson ¶ 7.
In the wake of the new Executive Order, Hawai‘i will no longer be able to
recruit, accept, enroll, or welcome individuals from the six designated countries to
its student body or faculty. This will impair the University’s ability to “recruit and
accept the most qualified students and faculty,” id., undermine its commitment to
being “one of the most diverse institutions of higher education” in the world, id.
¶ 11, and grind to a halt certain academic programs, including the Persian
Language and Culture program, id. ¶ 8. The Executive Order also risks
“dissuad[ing] some of [the University’s] current professors or scholars from
continuing their scholarship in the United States” and at the University. Id. ¶ 9.
14

By virtue of the Executive Order, these individuals’ spouses, parents, and children
are now presumptively unable to obtain a visa and join them in the United States.
These persons will have to choose between continuing their work or studies in the
United States and being with their family members overseas, and some will likely
chose the latter course.
In addition, the new Order threatens the collaborative exchange of ideas—
including among people of different religions and national backgrounds—on which
the State’s educational institutions depend. Id. ¶ 10; see also Compl. ¶ 94.
Notably, the University of Hawaii has study abroad or exchange programs in over
thirty countries, and international agreements for faculty collaboration with over
350 international institutions spanning forty different countries. Id. The new
Executive Order will prevent the University from continuing such programs in
several countries going forward.
Second, the new Executive Order prevents Hawai‘i from honoring the
commitments to nondiscrimination and diversity embodied in the State’s
Constitution, laws, and policies. Compl. ¶ 97. The Constitution of the State of
Hawai‘i provides that “[n]o law shall be enacted respecting an establishment of
religion, or prohibiting the free exercise thereof.” Haw. Const. art. I, § 4. And the
State has declared that the practice of discrimination “because of race, color,
religion, age, sex, including gender identity or expression, sexual orientation,
15

marital status, national origin, ancestry, or disability” is against public policy.
Haw. Rev. Stat. Ann. § 368-1; accord id. §§ 489-3 and 515-3.
Because of the new Executive Order, however, the State is denied its
sovereign right to implement this policy. State agencies and universities, for
example, cannot accept qualified applicants for open positions if they are residents
of one of the six designated countries because they will be unable to enter the
country, thwarting specific policies designed to promote diversity and recruit talent
from abroad. Compl. ¶ 97. Further, given that the Order began life as a “Muslim
ban,” its implementation means that the State will be forced to tolerate a policy that
disfavors one religion and violates the Establishment Clauses of both the federal
and State constitutions.
Third, the new Executive Order hinders the efforts of the State and its
residents to resettle and assist refugees. Compl. ¶ 104. Refugees from numerous
countries have resettled in Hawai‘i in recent years. Id. While the State’s refugee
program is small, it is an important part of the State’s culture. In late 2015, as
other States objected to the admission of Syrian refugees, Governor David Yutaka
Ige issued a statement that “slamming the door in their face would be a betrayal of
our values.” Governor Ige explained that “Hawai‘i is the Aloha State, known for
its tradition of welcoming all people with tolerance and mutual respect.” Id. As

16

long as the new Executive Order is in place, the State is forced to retreat on this
important part of its culture and traditions.
Fourth, the new Executive Order harms Hawaii’s economy and, by
extension, the State’s tax revenue. In particular, the Order will harm Hawaii’s
“lead economic driver,” tourism. Compl. ¶ 18. In 2015 alone, Hawai‘i welcomed
over 6,800 visitors from the Middle East and over 2,000 visitors from Africa.
Compl. ¶ 100. Data from Hawaii’s Tourism Authority suggests that during the
short period of time that the first Executive Order was in place, the number of
visitors to Hawai‘i from the Middle East (including Iran, Iraq, Syria and Yemen)
fell. Ex. B-1, Supp. Dec. of G. Szigeti, ¶¶ 5-8. For instance, Hawai‘i had 278
visitors from the Middle East in January 2017, compared to 348 visitors from that
same region in January 2016. Compl. ¶ 100.
Even with respect to countries not currently targeted by the new Executive
Order, there is a likely “chilling effect” on tourism to the United States, including
Hawai‘i. Ex. C-1, Supp. Dec. of L. Salaveria ¶¶ 6-10; Compl. ¶ 102. The new
Executive Order contemplates an expansion of the immigration ban to more
countries; it directs the Secretaries of State and Homeland Security to “conduct a
worldwide review” of every country’s immigration-related information systems,
Order § 2(a), and to recommend additional countries for inclusion in the travel ban
in the near future, id. § 2(b)-(f). These provisions of the new Order will instill
17

“uncertainty” and deter travel to the United States, Supp. Dec. Salaveria ¶ 8,
particularly among foreigners in other countries towards which the current
Administration has expressed hostility, such as other Muslim countries, China, and
Mexico. Compl. ¶ 102. This chilling effect is compounded by the Executive
Order’s creation of a global perception that the United States is an exclusionary
country. Id.
Empirical evidence already bears out this international chilling effect.
According to reports from travel companies and research firms, travel to the United
States more broadly “took a nosedive” following President Trump’s issuance of the
first Executive Order. Compl. ¶ 101. For instance, an airfare prediction company
found that flight search demand from 122 countries to the United States dropped
17% between January 26 and February 1, after the first Executive Order was
signed. Id.
Fifth, and last, Hawaii’s residents will be severely harmed by the new Order.
Hawai‘i is home to numerous non-citizens from the six designated countries—
foreign students, persons on exchange, visitors, and temporary workers—whose
lives may be directly affected by the new Executive Order. Compl. ¶ 95; see Ex.
E, Dec. of Ouansafi ¶¶ 8-12. Some of these non-citizens may be unable to travel
abroad to their home countries, for fear that they will be unable to return—for

18

instance, if they have only a single entry visa, or if their visa will expire while the
new Executive Order is in place. Id.
The new Executive Order also blocks all of Hawaii’s residents—including
U.S. citizens—from receiving visits from, or reunifying with, their family
members who live in these six designated countries. Compl. ¶ 96. In 2016,
approximately 8% of Hawaii’s visitors came to see family and friends, and
approximately 12% of Hawaii’s visitors from the Middle East and Africa came for
family and friends. Supp. Dec. Szigeti ¶ 11. Under the new Executive Order,
these individuals, to the extent that they live in the six designated countries and
lack a current visa, will no longer be able to travel to Hawai‘i.
F. The New Executive Order Harms Ismail Elshikh.
The situation of Plaintiff Ismail Elshikh exemplifies the harms the new
Executive Order inflicts on Hawaii’s citizens. Dr. Elshikh is an American citizen
of Egyptian descent. Compl. ¶ 24. He has been a resident of Hawai‘i for over a
decade, and is the Imam of the Muslim Association of Hawai‘i. Ex. A, Dec. of
Elshikh ¶¶ 1-2. He is a leader within Hawaii’s Islamic community. Id.
Dr. Elshikh has a wife and several children under the age of twelve, all of
whom are also American citizens. Id. ¶ 3. Dr. Elshikh’s wife is of Syrian descent
and is also a resident of Hawai‘i. Id. ¶ 1. His mother-in-law is a Syrian national,
living in Syria. Id. ¶ 4. She last visited the family in 2005. Id. ¶ 5. She has never
19

met two of her grandchildren, and only Dr. Elshikh’s oldest child remembers
meeting her. Id.
In September of 2015, Dr. Elshikh’s wife filed an I-130 Petition for Alien
Relative on behalf of her mother. On January 31, 2017—after the first Executive
Order was put in place—Dr. Elshikh was notified by the National Visa Center that
his mother-in-law’s application for an immigrant visa had been put on hold. Id.
¶ 4. Then, on March 2, 2017—after the first Executive Order was enjoined—Dr.
Elshikh and his family were notified by the National Visa Center that his motherin-law’s visa application had progressed to the next stage of the process and that
her interview would be scheduled at an embassy overseas. Id. Under the new
Executive Order, however, Dr. Elshikh fears that his mother-in-law will, once
again, be unable to “enter” the country. Id. Even though Dr. Elshikh’s mother-inlaw has a pending visa application, she is now barred from entering the United
States under the terms of Section 2(c) of the Executive Order unless she is granted
a waiver, because she is not a current visa holder. The family is devastated. Id.
¶ 6.
Many members of Dr. Elshikh’s Mosque have family and friends living in
the countries listed in the new Executive Order. Id. ¶ 8. Indeed, Dr. Elshikh
personally knows of “more than 20 individuals who are members of [his]
community and mosque, who have immediate relatives in the six designated
20

countries” in the new Order. Id. Because of the new Executive Order, these
residents of Hawai‘i live in forced separation from those family and friends.
The deprivation of contact with loved ones is only one of the profound
effects of the new Executive Order on Dr. Elshikh, his family, and his community.
Dr. Elshikh’s children are deeply affected because the Order conveys to them a
message that their own country would discriminate against individuals who share
their ethnicity and who hold their religious beliefs. Id. ¶¶ 3, 7. Dr. Elshikh’s
oldest child recently asked him, “Dad, how come we can’t have our grandmother
like our friends; is it because we are Muslims?” Id. ¶ 3. Members of his Mosque
feel that the new Executive Order targets Muslim citizens because of their religious
views and their national origins. Id. ¶ 7. Dr. Elshikh believes that, as a result of
the new Executive Order, he and members of the Mosque will not be able to
associate as freely with those of other faiths. Compl. ¶  89. He feels that in the
United States, there is now a favored and a disfavored religion. Compl. ¶  90.
President Trump’s new Executive Order is antithetical to Hawaii’s State
identity and spirit. For many in Hawai‘i, including state officials, the Executive
Order conjures up the memory of the Chinese Exclusion Acts and the imposition of
martial law and Japanese internment after the bombing of Pearl Harbor. As
Governor Ige observed two days after President Trump issued the first Executive
Order, “Hawai‘i has a proud history as a place immigrants of diverse backgrounds
21

can achieve their dreams through hard work. Many of our people also know all too
well the consequences of giving in to fear of newcomers. The remains of the
internment camp at Honouliuli are a sad testament to that fear. We must remain
true to our values and be vigilant where we see the worst part of history about to be
repeated.” Compl. ¶  105.
STANDARD OF REVIEW
To obtain a temporary restraining order 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). The Ninth Circuit
has “also articulated an alternate formulation of the Winter test, under which
‘serious questions going to the merits and a balance of hardships that tips sharply
towards the plaintiff can support issuance of a preliminary injunction, so long as
the plaintiff also shows that there is a likelihood of irreparable injury and that the
injunction is in the public interest.’ ” Farris v. Seabrook, 677 F.3d 858, 864 (9th
Cir. 2012) (internal quotation marks omitted).
ARGUMENT
The Ninth Circuit upheld a preliminary injunction barring enforcement of
the first Executive Order because the unlawful pronouncement irreparably harmed
22

the States, their citizens, and the public in general. The new Executive Order
should be enjoined for the same reasons.
A. Plaintiffs Are Likely To Succeed On The Merits Of Their Claims.
The Ninth Circuit held that the first Executive Order was properly enjoined
because the States had “viable claims based on the due process rights of persons”
who are in the United States “unlawfully; non-immigrant visaholders who have
been in the United States but [have] temporarily departed or wish to temporarily
depart; refugees; and applicants who have a relationship with a U.S. resident or an
institution that might have rights of its own to assert.” Washington, 847 F.3d at
1166 (internal citations omitted). The Court of Appeals also held that the States’
claims of unconstitutional religious discrimination “raise[d] serious allegations and
present[ed] significant constitutional questions.” Id. at 1168.
The current Order transgresses the same constitutional boundaries as the
first. See Part A.2, infra. But the most salient fact about the new Executive Order
is that this Court does not even need to go that far. As the Supreme Court has held
time and again, “courts should be extremely careful not to issue unnecessary
constitutional rulings.” Am. Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161
(1989) (per curiam); see also Bond v. United States, 134 S. Ct. 2077, 2087 (2014)
(“[T]he Court will not decide a constitutional question if there is some other
ground upon which to dispose of the case.”).
23

Here, a constitutional holding is unnecessary because Plaintiffs can
demonstrate the requisite likelihood of success based purely on statutory grounds.
Despite its efforts to “avoid * * * litigation,” the Government has not only failed to
camouflage the Order’s constitutional flaws, but has thrown the Order’s conflict
with the Immigration and Nationality Act (INA) into sharp relief. Because the
President’s revised policy runs contrary to the Act’s clear bar on nationality based
discrimination, as well as the INA’s finely reticulated system of immigration
controls, the Order’s implementation must be enjoined.
1. The Revised Order Violates The Immigration And Nationality Act.
Our Founders could not have been clearer. Article I vests Congress with the
power to “establish an uniform Rule of Naturalization.” U.S. Const. art. I, § 8, cl.
4. Those who built this Nation, fleeing religious persecution, “entrust[ed]
exclusively to Congress”—the people’s elected representatives—the power to set
“[p]olicies pertaining to the entry of aliens and their right to remain here.” Arizona
v. United States, 132 S. Ct. 2492, 2507 (2012) (quoting Galvan v. Press, 347 U.S.
522, 531 (1954)). To be sure, Congress has delegated some of that power to the
President through the INA. But it has set important limits—as it must—on that
delegation. The President cannot exceed the authority Congress gave him without
unlawfully “aggrandizing [his] power at the expense of another branch.”

24

Zivotofsky v. Clinton, 566 U.S. 189, 196-197 (2012) (quoting Freytag v.
Commissioner, 501 U.S. 868, 878 (1991)).
The revised Executive Order strays far beyond the statute’s limits. It
contravenes the statute’s clear prohibition on “discriminat[ion] * * * because of
* * * nationality,” 8 U.S.C. § 1152(a)(1)(A), and it flouts the scheme Congress
established “for determining terrorism-related inadmissibility,” Kerry v. Din, 135
S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring in the judgment). In both
respects, the Order is “incompatible with the expressed * * * will of Congress,”
where the President’s power is at “its lowest ebb.” Youngstown Sheet & Tube Co.
v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring in the judgment).
a. The revised Executive Order violates the INA’s prohibition on
nationality-based discrimination.
In 1965, Congress abolished the “national origins system” that had governed
immigration law for decades by enacting 8 U.S.C. § 1152(a)(1)(A). See H.R. Rep.
No. 89-745, at 9 (1965) (describing the national origins system as “racially biased,
statistically incorrect, and a clumsy instrument of selection based on
discrimination”). This landmark civil rights law—passed nearly
contemporaneously with the Voting Rights Act—provides that “[e]xcept as
specifically provided” in certain subsections, “no person shall receive any
preference or priority or be discriminated against in the issuance of an immigrant
visa because of the person’s race, sex, nationality, place of birth, or place of
25

residence.” 8 U.S.C. § 1152(a)(1)(A). As Judge Sentelle has written, “Congress
could hardly have chosen more explicit language”: It “unambiguously directed that
no nationality-based discrimination shall occur.” Legal Assistance for Vietnamese
Asylum Seekers v. Dep’t of State, 45 F.3d 469, 473 (D.C. Cir. 1995) (“LAVAS”),
vacated on other grounds, 519 U.S. 1 (1996).
Courts have applied this prohibition broadly. In addition to barring the
Executive from discrimination in issuing immigrant visas, they have held that
Congress made race and nationality “an impermissible basis” for any admission or
deportation decision. Wong Wing Hang v. INS, 360 F.2d 715, 719 (2d Cir. 1966)
(Friendly, J.). Executive officials, after all, may not exercise their discretion under
the immigration laws based on “considerations that Congress could not have
intended to make relevant.” United States ex rel. Kaloudis, 180 F.2d 489, 491 (2d
Cir. 1950) (L. Hand, J.); see, e.g., Judulang v. Holder, 565 U.S. 42, 53 (2011)
(immigration decisions must be based on “relevant factors” that have bearing on an
alien’s “fitness to reside in the country”). And since 1965, it has been clear that
Congress considers “invidious discrimination against a particular race or group” an
invalid consideration in making entry decisions. Wong Wing Hang, 360 F.2d at
719; see, e.g., Bertrand v. Sava, 684 F.2d 204, 213 n.12 (2d Cir. 1982)
(immigration officials may not “discriminate on * * * the basis of race and national
origin”); Abdullah v. INS, 184 F.3d 158, 166 (2d Cir. 1999) (same). Accordingly,
26

in Olsen v. Albright, 990 F. Supp. 31 (D.D.C. 1997), the D.C. District Court had
little difficulty concluding that consular officials “must not discriminate against
particular individuals because of the color of their skin or the place of their birth”
even in issuing “nonimmigrant visa[s].” Id. at 38-39 (emphasis added).
The Order violates this clear antidiscrimination mandate. It prohibits
“nationals of” six listed “countries” from “entry into the United States.” Order
§ 2(c). Furthermore, it states that the President may “prohibit the entry of * * *
foreign nationals” from additional “countries,” id. § 2(e), and authorizes
preferential treatment for any “Canadian immigrant who applies for a visa,” id.
§ 3(c)(viii). Tracking the words of Section 1152(a)(1)(A) almost verbatim, the
Order also provides that immigration officers may “authorize the issuance of a visa
to * * * a foreign national for whom entry is otherwise suspended” only if the
officers “decide on a case-by-case basis” to waive the Order’s restrictions. Id.
§ 3(c) (emphases added). In words too plain to mistake, these provisions direct
that aliens should “receive * * * preference or priority [and] be discriminated
against in the issuance of an immigrant visa because of * * * nationality,” 8 U.S.C.
§ 1152(a)(1)(A), and they authorize “discriminat[ion] on * * * the basis of * * *
national origin,” Bertrand, 684 F.2d at 212 n.12. The Order flatly violates the
statute.

27

The Government claims that Sections 1182(f) and 1185(a) authorize the
President to openly discriminate in this manner. See Order § 2(c). Not so. Those
provisions, both enacted in 1952, state in general terms that the President may
suspend the entry of “any class of aliens” and prescribe “limitations and
exceptions” on entry. 8 U.S.C. §§ 1152(a)(1), 1182(f). Section 1152(a)(1)(A), in
contrast, contains a specific prohibition on discrimination, was enacted later in
time, and exempts several provisions—but not Section 1182(f) or Section
1185(a)—from its scope. Congress thus made plain that the President cannot
ignore Section 1152(a)(1)(A)’s antidiscrimination command when invoking those
provisions. See United States v. Juvenile Male, 670 F.3d 999, 1008 (9th Cir. 2012)
(recognizing that “[w]here two statutes conflict, the later-enacted, more specific
provision generally governs”); United Dominion Indus. v. United States, 532 U.S.
822, 836 (2001) (describing expressio unius canon). Moreover, for decades courts
have held that facially neutral grants of discretion in the immigration laws, like
Sections 1182(f) and 1185(a), do not authorize “discriminat[ion] on * * * the basis
of race and national origin.” Bertrand, 684 F.2d at 213 n.12; see Wong Wing
Hang, 360 F.2d at 719 (Friendly, J.); Olsen, 990 F. Supp. at 38-39.
Until now, Presidents accepted this limit. Since Congress enacted
Sections 1182(f) and 1185(a) in 1952, Presidents have invoked the provisions
(either singly or together) over forty times. See Cong. Research Serv., Executive
28

Authority to Exclude Aliens: In Brief 6-10 (Jan. 23, 2017) (“CRS Report”),
https://fas.org/sgp/crs/homesec/R44743.pdf. No President in these years has ever
engaged in rank nationality-based discrimination without legislative authorization.
This sweeping Order is a first, and the Court cannot allow it to stand.
b. The revised Executive Order exceeds the President’s authority
under 8 U.S.C. § 1182(f).
In addition to discriminating on the basis of nationality, the Order flouts the
criteria Congress established for denying aliens entry on terrorism-related grounds.
Congress has “establish[ed] specific criteria for determining terrorismrelated inadmissibility.” Din, 135 S. Ct. at 2140 (Kennedy, J., concurring in the
judgment). Section 1182(a)(3)(B) states that an alien may be denied admission if,
among other things, that alien “has engaged in a terrorist activity”; there is
“reasonable ground to believe” that the alien “is engaged in or is likely to engage
after entry in any terrorist activity”; or the alien is “a member of a terrorist
organization.” 8 U.S.C. § 1182(a)(3)(B)(i)(I)-(II), (V)-(VI). The decision to deny
an alien entry under the Act’s “terrorism bar” is “legitimate,” Justice Kennedy
explained in his controlling opinion in Din, only if it “rest[s] on a determination
that [the alien] d[oes] not satisfy the statute’s requirements.” 135 S. Ct. at 2140.
The Order disobeys that straightforward instruction. It deems millions of
aliens inadmissible on the ground that they may be “foreign terrorists.” Order
§§ 2(c), 6(a). But it does not claim—nor could it—that there is “reasonable ground
29

to believe” that every covered national of six countries and every applicant for
refugee status is “likely to engage” in terrorism, or that any other provision of the
Act’s terrorism bar is satisfied. 8 U.S.C. § 1182(a)(3)(B)(i)(II). Instead, the Order
finds merely that there is an “increase[d] * * * chance” and a “heightened risk[]”
that refugees and aliens from the banned countries will include some “terrorists
operatives or sympathizers.” Order § 1(d)-(e). And based on that finding, the
Order establishes an entirely new set of admission rules: All aliens covered by the
Order—including refugees who are themselves seeking to escape violence—are
presumptively excluded as potential terrorists. Id. §§ 2(c), 6(a). They must seek
admission based on an intricate scheme of categorical exemptions and case-bycase waivers. See id. §§ 3, 6(c).
That cannot be lawful. The President cannot direct immigration officers to
ignore the criteria Congress established for excluding aliens as potential terrorists
and set up new rules that the President prefers. Congress painstakingly devised
and calibrated the limits on the terrorism bar over a period of decades. See, e.g.,
H.R. Rep. No. 104-469, at 166 (1996) (explaining that Congress was establishing a
“slightly less strict standard” for members of terrorist organizations, under which
they are not inadmissible if “innocent of involvement with or knowledge of
terrorist activity”). Congress altered these limits in the wake of 9/11, see, e.g.,
USA PATRIOT Act, Pub. L. No. 107-56, § 411 (2001), and only two years ago, it
30

specifically considered the risks the Order identifies, and chose to address them in
a far more limited manner: by authorizing the Government to prohibit persons who
had recently visited the listed countries from traveling to the United States without
a visa. See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. O,
§ 203 (2015) (codified at 8 U.S.C. § 1187(a)(12)(D)(ii)) (authorizing the Secretary
of State to require an alien to possess a visa if he recently traveled to a country in
which the alien’s “presence * * * increases the likelihood that the alien is a credible
threat to the national security”). The President violates Congress’s will by plowing
over the system Congress designed and replacing it with one (or two) he likes
more.
Section 1182(f) does not permit the President to ignore Congress’s
judgments in this manner. In sixty-five years, that provision has never been
understood to authorize the President to alter or augment the criteria for excluding
the “[c]lasses of aliens” that Congress itself addressed in 8 U.S.C. § 1182(a).
Rather, Section 1182(f) permits the President to exclude additional “class[es] of
aliens” on which the statute is silent. Id. § 1182(f). As the D.C. Circuit explained,
it authorizes the President to exclude a “class of [aliens] that is not covered by one
of the [inadmissibility] categories in Section 1182(a).” Abourezk v. Reagen, 785
F.2d 1043, 1049 n.2 (D.C. Cir. 1986) (emphasis added), aff’d mem., 484 U.S. 1
(1987).
31

Any other interpretation would impermissibly allow Section 1182(f) to
“swallow[]” the other categories of inadmissibility in Section 1182. Id. at 1056. In
Abourezk, the D.C. Circuit confronted a similar problem. The Government
contended that then-Section 1182(a)(27), which broadly prohibited admission of
aliens who might “engage in activities which would be prejudicial to the public
interest,” could be invoked to exclude certain aliens “simply because of their
membership in Communist organizations.” Id. at 1047, 1057 (quoting 8 U.S.C.
§ 1182(a)(27) (1982)). Yet an adjacent provision of the immigration laws, 8
U.S.C. § 1182(a)(28) (1982), set specific criteria for excluding members of
Communist organizations, and authorized the President to deem aliens
inadmissible because of membership in a Communist party only if “the admission
of such alien would be contrary to the security interests of the United States.” 785
F.2d at 1048 (quoting 8 U.S.C. § 1182(a)(28) (1982); 22 U.S.C. § 2691(a) (1982)).
The court held that “[t]he Executive [could] not use subsection (27) to evade the
limitations Congress appended to subsection (28)” by setting new criteria that
would exclude a broader range of Communists. Id. at 1057. That would make
subsection (28) “superfluous,” and “nullif[y]” “the congressional will expressed”
in that provision. Id. Considering the same question in Allende v. Shultz, 845 F.2d
1111 (1st Cir. 1988), the First Circuit agreed, holding that “[e]ach subsection” of

32

Section 1182 “creates a different and distinct ground for exclusion,” and none
should be interpreted to render another one “duplicative.” Id. at 1118.
The President’s interpretation of Section 1182(f), however, would permit
him to effectively “nullif[y]” any subsection of section 1182(a) and “evade the
limitations” Congress elsewhere imposed. He could, if he wished, block aliens
from entering the country because of ailments lacking any “public health
significance,” id. § 1182(a)(1); require victims of domestic violence to obtain
sponsorship from their spouses, cf. id. § 1182(a)(4)(D)(i) (exempting such victims
from this requirement); or ban entry of any immediate relatives of U.S. citizens
unless they satisfied criteria of the President’s choosing, cf. id. § 1153(a) (allotting
visas to immediate relatives). No statute should be interpreted in a manner that
would render another provision “superfluous,” or “a mere subset” of the first.
Loughrin v. United States, 134 S. Ct. 2384, 2390 (2014). And it is wellestablished, for that matter, that Congress “does not alter the fundamental details of
a regulatory scheme in vague terms or ancillary provisions”—it does not, as Justice
Scalia wrote, “hide elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns,
531 U.S. 457, 468 (2001). Enabling the President to rewrite vast swathes of the
immigration laws would surely be an elephant; and the vague terms of Section
1182(f), buried at the end of a list of express statutory limits, are a quintessential

33

mousehole. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 159160 (2000).
Moreover, the President’s understanding of the scope of section 1182(f) flies
in the face of historical practice. Of course, “[p]ast practice does not, by itself,
create power.” Medellín v. Texas, 552 U.S. 491, 532 (2008). Therefore, it would
not be significant if past presidents had inappropriately expanded their authority
through a misreading of Section 1182(f). But it is significant that past presidents
have not tried. Presidents have repeatedly relied on Section 1182(f) to deny entry
to classes of aliens who are subject to U.S. sanctions, e.g., Proc. No. 8693 (July 27,
2011), who have sought to undermine foreign democracies, e.g., Proc. No. 8015
(May 16, 2006), or who engaged in war crimes or similar atrocities, e.g., Proc. No.
6749 (Oct. 27, 1994). See generally CRS Report 6-10. Each of these classes is
“not covered” by Section 1182(a), Abourezk, 785 F.2d at 1049 n.2, and so the
President has a free hand to “suspend the[ir] entry” as he sees fit, 8 U.S.C.
§ 1182(f). No President, until now, has attempted to use Section 1182(f) (or
Section 1185(a)) to alter or override the categories Congress established.
Indeed, it is doubtful that Congress could delegate such breathtaking
authority to the President. The Constitution vests Congress, not the President, with
the responsibility to “establish an uniform Rule of Naturalization.” U.S. Const. art.
I, § 8, cl. 4. Congress cannot abdicate that role by giving the President unfettered
34

authority to write (and rewrite) the rules of admission. See Whitman, 531 U.S. at
472; see also Clinton v. City of New York, 524 U.S. 417, 443 (1998) (holding that
the Congress may not give the President “the power to cancel portions of a duly
enacted statute”).
The Government suggests that Section 1182(f) must be read to grant the
President this vast power because it says that the President may suspend entry of
“any class of aliens.” 8 U.S.C. § 1182(f) (emphasis added). But this is not the first
time that courts have encountered—and rejected—the Government’s claim that a
broadly-worded immigration statute gives it “unbounded authority.” United States
v. Witkovich, 353 U.S. 194, 199 (1957). In Witkovich, the Government argued that
a statute requiring aliens to provide “such * * * information * * * as the Attorney
General may deem fit and proper” vested the Attorney General with essentially
“limitless” authority to request information as he saw fit. Id. at 198, 200. The
Court rejected that claim; although the statute contained no limits when “read in
isolation and literally,” in “the context of th[e] [statutory] scheme” it was clearly
intended to authorize only those questions relevant to determining deportability.
Id. at 199, 200-202; see also, Zadvydas v. Davis, 533 U.S. 678, 682, 689 (2001)
(statute stating that aliens “may be detained beyond the removal period” must be
read to “contain an implicit ‘reasonable time’ limitation.”); Kent v. Dulles, 357

35

U.S. 116, 129-130 (1958) (similarly adopting limiting construction of broadly
worded passport statute).
Similar cases proliferate: As the Ninth Circuit has explained, “[i]n the
immigration context, courts have often read limitations into statutes that appeared
to confer broad power on immigration officials in order to avoid constitutional
problems.” Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1106 (9th Cir. 2001); see
Romero v. INS, 39 F.3d 977 (9th Cir. 1994) (adopting limiting construction);
Tashima v. Admin. Office of U.S. Courts, 967 F.2d 1264, 1271 (9th Cir. 1992)
(similar).
The same course is appropriate here. The phrase “any class of aliens”
cannot possibly vest the President with unbounded authority to discard the rules of
entry Congress designed. Rather, as in many circumstances, the surrounding
statutory provisions “counteract the effect” of the “expansive modifier[] * * *
‘any.’ ” Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 n.4 (2008); see Circuit
City Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001) (imposing limiting
construction on the phrase “any other class of workers” in light of the surrounding
context). The “legislative scheme,” and the severe and constitutionally suspect
consequences of a broad reading, Witkovich, 353 U.S. at 200-202, make clear that
the President may not use his authority under Section 1182(f) to modify the criteria
for denying entry to a class of aliens Congress already addressed in Section
36

1182(a). Because the Order does just that—instructing immigration officers to
apply “criteria for determining terrorism-related inadmissibility” that Congress did
not establish, Din, 135 S. Ct. at 2140—it is unlawful, and cannot stand.
2. The Revised Order Is Unconstitutional.
The Order’s obvious conflict with the INA is more than enough to establish
the Plaintiffs’ likelihood of success on the merits. But if this Court does reach
Plaintiffs’ constitutional claims, it should have little trouble holding that they are
meritorious. The Government’s constitutional defense of the prior Order was
predicated almost exclusively on an assertion of unreviewable Executive power
that the Ninth Circuit resoundingly repudiated: “[A]lthough courts owe
considerable deference to the President’s policy determinations with respect to
immigration and national security, it is beyond question that the federal judiciary
retains the authority to adjudicate constitutional challenges to executive action.”
847 F.3d at 1164 (emphasis added). Stripped of that claim of absolute power, the
Government has nothing with which to shield itself from the conclusion that the
revised Order violates the Constitution’s core due process and religious freedom
guarantees.

37

a. The revised Executive Order violates Due Process.
The Fifth Amendment prohibits the Government from depriving individuals
of their “life, liberty, or property, without due process of law.” U.S. Const. amend.
V. The new Order, like the old, runs contrary to this command.
The Ninth Circuit affirmed the injunction of the prior Order based on the
strength of the States’ due process claims. In doing so, it specifically declined the
Government’s request to narrow the preliminary injunction to apply only to
“lawful permanent residents” and “previously admitted aliens who are temporarily
abroad now or who wish to travel and return to the United States in the future.”
Washington, 847 F.3d at 1166. That limitation, the Ninth Circuit held, would
“leave[] out at least some who” have “viable due process claims,” including “aliens
who are in the United States unlawfully,” “refugees,” and “citizens who have an
interest in specific non-citizens’ ability to travel to the United States.” Id.
Flouting that holding, the Government has promulgated a new Order that
imposes the same underinclusive limitation the Ninth Circuit rejected. The
Government touts the fact that the new Order will not “affect the ability of
individuals * * * who are lawfully in the United States on the effective date to
leave the country to travel and return later.” Notice of Filing of Executive Order at
9 (Mar. 6, 2017) (“Notice”), ECF No. 56. But there was nothing qualified about
the Ninth Circuit’s holding that “aliens who are in the United States unlawfully”
38

also “have due process rights.” 847 F.3d at 1166 (emphasis added). The
Government also assures this Court that the new Order will “not result in the
revocation or cancellation of valid visas or create an emergent situation whereby
visaholders abroad are prevented from entering the United States.” Notice at 9
(emphasis in original). But the Ninth Circuit’s opinion covered more than just
restrictions on the entry of visaholders. The Court of Appeals explained that
barring the entry of non-citizens in general creates “viable due process claims” for
“citizens who have an interest in specific non-citizens’ ability to travel to the
United States,” 847 F.3d at 1166.—such as a citizen whose spouse or parent is
seeking admission, Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in the
judgment), or a university deprived of the “debates” and “discussion” provided by
a visiting scholar, Kleindienst v. Mandel, 408 U.S. 753, 764 (1972); see generally
Moore v. City of East Cleveland, 431 U.S. 494 (1977) (recognizing the Due
Process Clause protects family integrity); Troxel v. Granville, 530 U.S. 57 (2000)
(same).
The Government also asserts that the new Order contains “a robust and selfexecuting waiver provision” that avoids any due process concerns. Notice at 9.
That cannot be true. The prior Order also contained waiver provisions, see January
27 Order §§ 3(g), 5(e), but that was not enough for it to pass constitutional muster.

39

The revised Order offers more detail as to who “could” be eligible for a waiver, but
it does not guarantee appropriate process to anyone. Compl. ¶ 77. 1
b. The revised Executive Order violates the Constitution’s protections
against religious discrimination.
The Ninth Circuit also determined that there were “significant constitutional
questions” with regard to the prior Order’s compliance with the Establishment
Clause and the religious discrimination bar found in the Equal Protection Clause.2
Washington, 847 F.3d at 1168. That is hardly surprising. “A law that has a
religious, not secular, purpose” violates the Constitution. Id. at 1167. “It is well
established that evidence of purpose beyond the face of the challenged law may be
considered in evaluating Establishment and Equal Protection Clause claims.” Id.

1

The revised Executive Order may limit the due process rights of other
individuals, as well. Section 3(a)(i) purports to limit the “entry” ban in Section 2
“to foreign nationals of the designated countries who are outside the United States
on the effective date of this order.” But the Department of Homeland Security’s
accompanying Q&A document suggests that foreign nationals of the six designated
countries who are in the United States with “single entry visas,” student visas, or
visas due to expire during the duration of the Order will be prohibited from leaving
and reentering the country. Compl. ¶¶ 83-84. If so, persons with those visas
would also suffer an impairment to their due process rights and their fundamental
right to travel under the Fifth Amendment.
2

For the reasons described above, see supra Part A.1.a, the Order also violates the
constitutional bar on discrimination based on nationality. See Kwai Fun Wong v.
United States, 373 F.3d 952, 968-975 (9th Cir. 2004) (holding that the Constitution
protects both admitted and non-admitted aliens from discrimination on the basis of
national origin). In addition, its obvious discrimination against those of the
Muslim faith burdens free-exercise in violation of the Religious Freedom
Restoration Act and the Free Exercise Clause. Compl. ¶¶ 132-36.
40

And that evidence may include “the historical background of the decision and
statements by decisionmakers.” Id. (describing the holding of Village of Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68(1977)).
In analyzing this evidence, the key question is whether “a reasonable
observer[]” with a “reasonable memor[y]” would infer a religious purpose from the
Government’s actions. McCreary County v. Am. Civil Liberties Union, 545 U.S.
844, 867 (2005). The Ninth Circuit has explained that regardless of “the
government’s actual purpose,” a constitutional violation occurs if “the practice
under review in fact conveys a message of endorsement or disapproval.” Access
Fund v. U.S. Dep’t of Agriculture, 499 F.3d 1036, 1045 (9th Cir. 2007) (internal
quotation marks omitted) (emphasis added).
The history of the initial Order and the statements by the President and his
surrogates make it patently obvious that a “reasonable observer” with a
“reasonable memory” would recognize that the original Order conveyed a
“message of [religious] disapproval.” As another district court held, there is ample
“unrebutted evidence” demonstrating that challenges to the original Order were
“likely to succeed on the Establishment Clause claim.” Aziz, 2017 WL 580855 at
*8.
The new Order seeks to change that conclusion by announcing a series of
secular purposes for the policy, and by asserting that the original Order “did not
41

provide a basis for discriminating for or against members of any particular
religion.” Order § 1(b)(4). Given the Order’s origins and the context of its release,
these hollow recitations are not nearly enough to avoid a constitutional violation.
“[A]lthough a legislature’s stated reasons will generally get deference, the
secular purpose required has to be genuine, not a sham, and not merely secondary
to a religious objective.” McCreary, 545 U.S. at 864; see also, e.g., Edwards v.
Aguillard, 482 U.S. 578, 586-587 (1987) (stated secular purpose must be “sincere
and not a sham”). Here, there can be little doubt that the stated secular purposes
are a “sham,” or at the very least “secondary to [the] religious objective” of
banning Muslims. The President’s senior policy advisor, and one of the Order’s
architects, has himself stated that the revised Order is designed to accomplish “the
same basic policy outcome for the country” as the first, while merely correcting “a
lot of very technical issues that were brought up by the court.” Compl. ¶ 74.
In fact, the Government seems to be taking a page from the book of the
counties that unsuccessfully defended against an Establishment Clause challenge in
McCreary. In that case, two counties posted public displays of the Ten
Commandments. One did so in a ceremony aided by a priest who spoke about
God, such that “[t]he reasonable observer could only think that the Counties meant
to emphasize and celebrate” the “religious message.” 545 U.S. at 868-869. After
they were sued, the Counties posted a new display that made their religious
42

purposes more explicit, before changing course and installing a third display that
situated the Ten Commandments as part of the “Foundations of American Law and
Government.” Id. The Counties informed the courts that this third display had
several secular purposes and that the purposes behind the prior displays were “dead
and buried.” Id. at 870-871. The courts were not fooled.
In a holding that was almost made for this case, the Supreme Court stated
that “the world is not made brand new every morning.” Id. at 866. Courts may not
“ignore perfectly probative evidence” as to the “history of the government’s
actions” and what it “has to show.” Id. Nor may they “turn a blind eye to the
context in which [the] policy arose.” Id. (quoting Santa Fe Ind. School Dist. v.
Doe, 530 U.S. 290, 315 (2000)).
That, of course, is exactly what the Government asks this Court to do. It
wants this Court to ignore the President’s repeated pronouncements of a desire to
enact a Muslim ban, ignore his statements that he intended to shield that ban from
judicial review by cloaking it in secular garb, ignore his surrogate’s statement that
the first Order was intended to serve as the ban, ignore his own statements that the
original Order was intended to favor Christian over Muslim refugees, and ignore
the Administration’s subsequent assurance that the new Order does nothing more
than resolve “technical issues.” See supra pp. 3-8 (recounting the Order’s history).
And the Government wants the Court to turn a blind eye to the copious evidence
43

undermining the avowed national security purpose of the Order. See Aziz, 2017
WL 580855, at *9 (concluding that the original Order “was not motivated by
rational national security concerns”). That ranges from the gross mismatch
between the Order’s avowed goal of fighting terrorism and its failure to include the
countries from which the 9/11 attackers came, to the cognitive dissonance of
insisting that the Nation’s safety depends on the Order being implemented
immediately and then delaying the roll out of a revised Order to take advantage of
a favorable news cycle. Compl. ¶ 74. As Justice Scalia once remarked in another
context, “this wolf comes as a wolf,” Morrison v. Olson, 487 U.S. 654, 699 (1988)
(Scalia J, dissenting)—and it cannot disguise that fact by throwing on an article or
two of sheep’s clothing.
To recognize as much is not to hold that the past statements of the President
and his Administration have “forever taint[ed] any effort on their part to deal with
the subject matter” of immigration. McCreary, 545 U.S. at 874. “[D]istrict courts
are fully capable of adjusting preliminary relief to take account of genuine changes
in constitutionally significant conditions.” Id. at 874. The President, however, has
pointed to none. He has pointed to no alteration in the global landscape beyond his
own inauguration, and no evidence that his motives have changed beyond selfserving statements in the Order and in the course of litigation.

44

Recognizing this wolf is perfectly consistent with the deference owed to the
Executive in the national security and immigration context. Enjoining this Order
will not open the door to a slew of future challenges of executive orders. The
unique and unprecedented context means that a constitutional decision in this case
will only foreclose future presidents from announcing a nakedly discriminatory
intent and then—in the absence of any changed circumstances—carrying out that
purpose by effecting a dramatic alteration of Congress’s carefully constructed
immigration scheme. That is no more than the Constitution demands.
B. The Plaintiffs Will Suffer Irreparable Harm If Relief Is Not Granted.
The injuries inflicted by this unlawful Order are legion. Both the State and
Dr. Elshikh are already suffering and will continue to suffer myriad irreparable
harms. These injuries not only satisfy the irreparable harm element of the
temporary injunction standard, but also easily demonstrate the Plaintiffs’ standing.
That is particularly true with respect to Hawai‘i because, under Massachusetts v.
EPA, 549 U.S. 497 (2007), States are due “special solicitude in [the] standing
analysis” when they assert “sovereign prerogatives.” Id. at 520.
First, the Order severely damages the State’s schools and universities. In
performing its standing analysis, the Ninth Circuit found it obvious that “as a result
[of the prior Order], some [nationals of the designated countries] will not enter
state universities, some will not join those universities as faculty, some will be
45

prevented from performing research, and some will not be permitted to return if
they leave.” Washington, 847 F.3d at 1161. The current Order has almost
precisely the same effect. As a result, the State has suffered “a concrete and
particularized injury to [its] public universities.” Id. at 1159. The new Order
detracts from the University of Hawaii’s diversity and impedes the State’s
commitment to international scholarship and global exchange—inflicting the very
harms Congress’s prohibition on nationality-based discrimination was designed to
prevent. Id. at 1160. Those harms are already occurring and will be extremely
difficult to undo if the Order is not stayed.
Second, the Executive Order will irreparably harm Hawaii’s sovereign
interest in preventing the unconstitutional “establishment” of religion in the State.
This harm alone is sufficient to warrant injunctive relief because in Establishment
Clause cases, irreparable harm is presumed. See, e.g., Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 303 (D.C. Cir. 2006) (if a movant
demonstrates a likelihood of success on an Establishment Clause claim, “this is
sufficient, without more, to satisfy the irreparable harm prong”); see also Farris,
677 F.3d at 868 (9th Cir. 2012) (adopting the same rule for First Amendment
claims generally). The history of the Establishment Clause demonstrates that the
harm is particularly acute with respect to States. See Elk Grove Unified School
Dist. v. Newdow, 542 U.S. 1, 49 (2004) (Thomas, J., concurring).
46

Third, the Order irreparably harms the State because it prevents Hawai‘i
from fully enforcing its antidiscrimination laws and policies. Hawaii’s
Constitution protects religious freedom and the equal rights of all persons. Hawai‘i
Const. art. 1, §§ 2, 4. Its statutes and policies bar discrimination and further
diversity. Haw. Rev. Stat. §§ 378-2(1); 489-3; 515-3; Compl. ¶ 72. The Executive
Order commands Hawai‘i to abandon these sovereign prerogatives by requiring the
State, and therefore its universities, its agencies, and its instrumentalities, to
exclude individuals based on their nationality and religion. “Any time a State is
enjoined by a court from effectuating statutes enacted by representatives of its
people, it suffers a form of irreparable injury.” New Motor Vehicle Bd. v. Orrin W.
Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers). The same is
true when it is an Executive Order that prevents effectuation of the State’s laws.
Fourth, the Executive Order will inflict irreparable harm on Hawaii’s
economy and tax revenues. As the “state’s lead[ing] economic driver,” tourism is
crucial to Hawaii’s economy. Compl. ¶ 15. In 2015 alone, Hawai‘i had 8.7
million visitor arrivals, accounting for $15 billion in spending. Id. The Order
prevents nationals of the designated countries from visiting the State, and chills
tourism from many other countries, resulting in considerable lost revenues. See
Texas v. United States, 809 F.3d 134, 155-156 (5th Cir. 2015), aff’d by an equally
divided Court, 136 S. Ct. 2271 (2016) (holding that the “financial loss[es]” that
47

Texas would bear, due to having to grant drivers licenses to deferred action
recipients, constituted a concrete and immediate injury for standing purposes); see
also United States v. Windsor, 133 S. Ct. 2675 (2013) (standing to appeal an order
to pay a tax refund); Wyoming v. Oklahoma, 502 U.S. 437, 448 (1992) (standing to
sue for “direct injury in the form of a loss of specific tax revenues”). The Order
will also inflict incalculable and lasting harm on Hawaii’s hard-won reputation as a
place of welcome. See Oracle USA, Inc. v. Rimini St., Inc., 2016 WL 5213917, at
*2 (D. Nev. Sept. 21, 2016). And it will force the State to abandon the refugee
program that embodies the State’s tradition of openness.
Fifth, the Order irreparably harms Dr. Elshikh, in particular, because it
deprives him and his family of the company of Dr. Elshikh’s mother-in-law. See
Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in the judgment) (recognizing
potential constitutional harm inflicted when a loved one is prohibited from entering
the country); id. at 2142-43 (Breyer, J., concurring) (same). The Order prolongs
the separation of Dr. Elshikh’s family, and causes him severe emotional turmoil.
Even the Government has acknowledged the standing of a person that asserts an
“independent constitutionally protected interest in [a] third-party’s admission to the
country.” 9th Circuit Govt. Reply Br. at 4. Further, Dr. Elshikh is irreparably
harmed by the infringement of his rights to be free from governmental
discrimination based on religion and nationality.
48

Finally, the Order irreparably harms the State by inflicting similar injuries
on its population as a whole. The new Order subjects citizens of Hawai‘i like Dr.
Elshikh to discrimination and marginalization while denying all residents of the
State the benefits of a pluralistic and inclusive society. Hawai‘i has a quasisovereign interest in “securing [its] residents from the harmful effects of
discrimination.” Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592, 609 (1982).
The Order also harms Hawai‘i by debasing its culture and tradition of ethnic
diversity and inclusion.
C. The Balance Of The Equities And Public Interest Favor Relief.
The public interest plainly favors a stay of this Order. It is not only Hawai‘i
but the country that has a rich and storied tradition of welcoming immigrants and
celebrating differences. The Order badly encroaches on this core element of
America’s history and culture, all the while marginalizing minorities, sowing
discord in the population, and violating congressional and constitutional
commands. Against all this, the Government pleads only an urgent national
security rationale that it has itself undercut in numerous ways. The
Administration’s own decision to delay the Order’s roll out for publicity purposes
establishes that there is no urgency. Compl. ¶ 74. Its own DHS memorandum
establishes that the Order will not make the country safer. Compl. ¶ 61. And the
President’s own statements regarding the Order’s true purpose establish that the
49

Order is designed to hurt members of a minority religion, not help the American
citizenry as a whole. All a stay will do is preserve a status quo that has existed for
decades.
D. The Court Should Issue A Nationwide Injunction.
Because the factors for issuing a temporary restraining order are easily
satisfied, the Court should enter a nationwide injunction prohibiting the
enforcement of sections 2 and 6 of the Order. Both of these sections are unlawful
in all of their applications: Section 2 discriminates on the basis of nationality, see
supra Part A.1.a, Sections 2 and 6 exceed the President’s authority under 8 U.S.C.
§§ 1182(f) and 1185(a), see supra Part A.1.b, and both provisions are motivated by
anti-Muslim animus, see supra Part A.2.a. Furthermore, each provision infringes
on the “due process rights” of numerous U.S. citizens and institutions by barring
the entry of non-citizens with whom they have close relationships. 847 F.3d at
1166; see supra Part A.2.b. As the Ninth Circuit explained last month, there is no
practicable way to “limit the scope of the TRO” that would not “leave[] out at least
some” of those protected individuals. Washington, 847 F.3d at 1166.
Moreover, as the Ninth Circuit also held, the court should not “limit the
geographic scope of the TRO.” Id. “[S]uch a fragmented immigration policy
would run afoul of the constitutional and statutory requirement for uniform
immigration law and policy.” Id. at 1166-67 (citing Texas, 809 F.3d at 187-188);
50

see U.S. Const. art. I, § 8, cl. 4 (requiring “an uniform Rule of Naturalization”
(emphasis added)). In addition, the Ninth Circuit has held that a “nationwide
injunction * * * is compelled by the text of the Administrative Procedure Act,” one
of the causes of action under which the Plaintiffs have brought their statutory and
constitutional claims. Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th
Cir. 2006), rev’d in part on other grounds, 555 U.S. 488 (2009). And in light of
“the nation’s multiple ports of entry and interconnected transit system,” and the
State’s geographic remoteness, limiting the injunction to Hawai‘i would not
adequately prevent the State and its citizens from suffering the irreparable harms
described above. Washington, 847 F.3d at 1167.
CONCLUSION
For decades Hawai‘i has endeavored to consign to history the memories of
Japanese internment and the Chinese Exclusion Acts. It has tried to build a society
of openness and inclusion, and to welcome visitors of all nations and religions to
its shores, its universities, and its economy. The State and its citizens, including
Dr. Elshikh, should not be compelled to endure discrimination and mistreatment at
the hands of their own Government. The Constitution and laws of this country
stand as a bulwark against such Executive acts. The Order should be enjoined.

51

DATED: Washington, D.C., March 8, 2017.
Respectfully submitted,
/s/ Neal K. Katyal
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: [phone]
Fax: [phone]
Email: [e-mail]

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

Attorneys for Plaintiff, State of Hawai‘i

52

Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh