State of Hawaii v. Trump
Filing
98
MOTION for Leave to File Amici Curiae Brief in Support of Plaintiffs Louise K.Y. Ing appearing for Amicus Parties Asian American Legal Defense And Education Fund (AALDEF), Asian Americans Advancing Justice (AAJC), Asian Americans Advancing Justice (Asian Law Caucus), Asian Americans Advancing Justice (Atlanta), Asian Americans Advancing Justice (Chicago), Asian Americans Advancing Justice (Los Angeles), Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Hispanic National Bar Association (HNBA), Japanese American Citizens League, Honolulu Chapter (JACL Honolulu), Karen Korematsu, LatinoJustice PRLDEF, Inc., National Bar Association, South Asian Bar Association of North America (SABA North America), Holly Yasui (Attachments: # 1 Amici Curiae Brief, # 2 Certificate of Service)(Ing, Louise)
ALSTON HUNT FLOYD & ING
Louise K.Y. Ing
2396
Claire Wong Black
9645
1001 Bishop Street, Suite 1800
Honolulu, Hawai`i 96813
Telephone: (808) 524-1800
Facsimile: (808) 524-4591
Email:
ling@ahfi.com
cblack@ahfi.com
AKIN GUMP STRAUSS HAUER
& FELD LLP
Pratik A. Shah (pro hac pending)
Robert S. Strauss Building
1333 New Hampshire Avenue, NW
Washington, DC 20036-1564
Telephone: (202) 887-4000
Facsimile: (202) 887-4288
Email: pshah@akingump.com
Attorneys for Amici Curiae
(See Next Page for Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
Case No. 1:17-CV-00050 DKW-KJM
STATE OF HAWAI`I and ISMAIL
ELSHIKH,
MOTION FOR LEAVE TO FILE
Plaintiffs,
BRIEF OF THE FRED T.
KOREMATSU CENTER FOR
v.
LAW AND EQUALITY, JAY
HIRABAYASHI, HOLLY YASUI,
DONALD J. TRUMP, in his official
KAREN KOREMATSU, CIVIL
capacity as President of the United States; RIGHTS ORGANIZATIONS, AND
U.S. DEPARTMENT OF HOMELAND
NATIONAL BAR ASSOCIATIONS
SECURITY; JOHN F. KELLY, in his
OF COLOR, AS AMICI CURIAE
official capacity as Secretary of
IN SUPPORT OF PLAINTIFFS
Homeland Security; U.S. DEPARTMENT
OF STATE; REX TILLERSON, in his
official capacity as Secretary of State; and
the UNITED STATES OF AMERICA,
Defendants.
ADDITIONAL COUNSEL
Eric Yamamoto
2337
Fred T. Korematsu Professor of
Law and Social Justice
2515 Dole Street
Honolulu, Hawai`i 96822
Telephone: (808) 956-6548
Facsimile: (808) 956-5569
Email: ericy@hawaii.edu
AKIN GUMP STRAUSS HAUER
& FELD LLP
Robert A. Johnson (pro hac pending)
One Bryant Park
New York, NY 10036
Telephone: (212) 872-1000
Facsimile: (212) 872-1002
Email: rajohnson@akingump.com
Jessica M. Weisel (pro hac pending)
1999 Avenue of the Stars, Suite 600
Los Angeles, CA 90067
Telephone: (310) 229-1000
Facsimile: (310) 229-1001
Email: jweisel@akingump.com
Attorneys for Amici Curiae
The Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi,
Holly Yasui, Karen Korematsu, Civil Rights Organizations, and National Bar
Associations of Color hereby submit this Motion for Leave to File a Brief as Amici
Curiae in Support of Plaintiffs.
INTEREST OF AMICI CURIAE AND REASONS WHY
THE MOTION SHOULD BE GRANTED
Amicus curiae the Fred T. Korematsu Center for Law and Equality
(“Korematsu Center”) is a non-profit organization based at the Seattle University
School of Law. The Korematsu Center works to advance justice through research,
advocacy, and education. Inspired by the legacy of Fred Korematsu, who defied
military orders during World War II that ultimately led to the unlawful
incarceration of 110,000 Japanese Americans, the Korematsu Center works to
advance social justice for all. The Korematsu Center does not, in this brief or
otherwise, represent the official views of Seattle University.
The Korematsu Center has a special interest in addressing government
action targeted at classes of persons based on race, nationality, or religion.
Drawing on its experience and expertise, the Korematsu Center seeks to ensure that
courts understand the historical—and, at times, profoundly unjust—underpinnings
of arguments asserted to support the exercise of such unchecked executive power.
Amici curiae Jay Hirabayashi, Holly Yasui, and Karen Korematsu are
children of three Japanese Americans who challenged the government’s racial
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curfew and detention programs in the United States Supreme Court during World
War II: Gordon Hirabayashi (see Hirabayashi v. United States, 320 U.S. 81
(1943)); Minoru Yasui (see Yasui v. United States, 320 U.S. 115 (1943)); and Fred
Korematsu (see Korematsu v. United States, 323 U.S. 214 (1944)). Their interest is
in reminding this court of the legacy those judicial decisions had on their
generation and will have on future generations, and the impact of judicial decisions
that fail to protect men, women, and children belonging to disfavored groups in the
name of national security. Guilt, loyalty, and threat are individual attributes. When
these attributes are imputed to racial, religious, or national origin groups, courts
play a crucial role in ensuring that there is a legitimate basis. Disaster has occurred
when courts have refused to play this role.
During World War II, Gordon Hirabayashi, Minoru Yasui, and Fred
Korematsu stood largely alone. Here, their children are gratified to have such a
broad coalition standing with them, and together, standing with those communities
and individuals most directly harmed by the Executive Order:
This Brief is also submitted by all members of Amicus Curiae Asian
Americans Advancing Justice (“Advancing Justice”), the national affiliation of five
nonprofit, nonpartisan civil rights organizations: Asian Americans Advancing
Justice – AAJC, Asian Americans Advancing Justice – Asian Law Caucus, Asian
Americans Advancing Justice – Atlanta, Asian Americans Advancing Justice –
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Chicago, and Asian Americans Advancing Justice – Los Angeles. Members of
Advancing Justice routinely file amicus curiae briefs in cases in the federal courts.
Through
direct
services, impact
litigation, policy advocacy,
leadership
development, and capacity building, the Advancing Justice affiliates advocate for
marginalized members of the Asian American, Native Hawaiian, Pacific Islander
and other underserved communities, including immigrant members of those
communities.
Amicus curiae the Asian American Legal Defense and Education Fund
(“AALDEF”), founded in 1974, is a national organization that protects and
promotes the civil rights of Asian Americans. By combining litigation, advocacy,
education, and organizing, AALDEF works with Asian American communities
across the country to secure human rights for all. The President’s Executive Order,
which would curtail the rights of immigrants to be free from discrimination
because of their race, national origin, or religion, raises issues central to
AALDEF’s mission. In 1982, AALDEF testified before the U.S. Commission on
Wartime Relocation and Internment of Civilians, in support of reparations for
Japanese Americans forcibly relocated and imprisoned in camps during World War
II. After 9/11, AALDEF represented more than 800 individuals from Muslimmajority countries who were called in to report to immigration authorities under
the Special Registration (“NSEERS”) program. AALDEF is currently providing
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community education and legal counseling to Asian Americans affected by the
challenged Executive Order.
Amicus curiae the Hispanic National Bar Association (“HNBA”) is
comprised of thousands of Latino lawyers, law professors, law students, legal
professionals, state and federal judges, legislators, and bar affiliates across the
country. The HNBA supports Hispanic legal professionals and is committed to
advocacy on issues of importance to the 53 million people of Hispanic heritage
living in the United States. The HNBA regularly participates as amicus curiae in
cases concerning immigration and the protection of refugees.
Amicus curiae the Japanese American Citizens League of Hawaii,
Honolulu Chapter (“JACL Honolulu”) is a non-profit corporation under Section
501(c)(3) of the Internal Revenue Code based in Honolulu, Hawaii.
JACL
Honolulu draws upon Hawaii’s rich, multi-ethnic society and strong cultural
values, with a particular focus on discrimination and intolerance towards all people
victimized by injustice and prejudice. JACL Honolulu has supported redress for
Japanese Americans interned unfairly under Executive Order 9066, in addition to
working on and sponsoring annual events to commemorate and educate the public
regarding the internment and Executive Order 9066 as well as the suffering and
injustice that stemmed from these wrongful actions.
The President’s new
Executive Order concerning immigration and refugee admissions discriminates
4
based on race, national origin, or religion, and is reminiscent of Executive Order
9066 that paved the way for the mass incarceration of thousands of Japanese
Americans. The history of Japanese Americans and Executive Order 9066 closely
parallels current actions targeting Muslims under the President’s new Executive
Order. This injustice is one of the core reasons for the founding of the JACL
Honolulu chapter.
Amicus curiae LatinoJustice PRLDEF, Inc. (“LatinoJustice”) is a
national not-for-profit civil rights legal defense fund that has defended the
constitutional
rights
and
equal
protection
of
all
Latinos
under
the
law. LatinoJustice’s continuing mission is to promote the civic participation of the
greater pan-Latino community in the United States, to cultivate Latino community
leaders, and to engage in and support law reform litigation across the country
addressing criminal justice, education, employment, fair housing, immigrants’
rights, language rights, redistricting, and voting rights. During its 45-year history,
LatinoJustice has litigated numerous cases in both state and federal courts
challenging multiple forms of racial discrimination by government actors including
law enforcement practices that illegally target racial groups based upon their race,
national origin and immigration status.
Amicus curiae the National Bar Association (“NBA”) is the largest
and oldest association of predominantly African-American attorneys and judges in
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the United States. The NBA was founded in 1925 when there were only 1,000
African-American attorneys in the entire country and when other national bar
associations, such as the American Bar Association, did not admit AfricanAmerican attorneys. Throughout its history, the NBA consistently has advocated
on behalf of African Americans and other minority populations regarding issues
affecting the legal profession. The NBA represents approximately 66,000 lawyers,
judges, law professors, and law students, and it has over eighty affiliate chapters
throughout the world.
Amicus curiae the South Asian Bar Association of North America
(“SABA”) is the umbrella organization for 26 regional bar associations in North
America representing the interests of over 6,000 attorneys of South Asian descent.
SABA provides a vital link for the South Asian community to the law and the legal
system. Within the United States, SABA takes an active interest in the legal rights
of South Asian and other minority communities. Members of SABA include
immigration lawyers and others who represent persons that have been and will be
affected by the Executive Order.
The court should use its discretion to grant this Motion, and permit the
Amici to file their concurrently submitted Brief of Amici Curiae because they
fulfill “the classic role of amicus curiae by assisting in a case of general public
interest, supplementing the efforts of counsel, and drawing the court’s attention to
6
law that escaped consideration.” Miller-Wohl Co. v. Comm’r of Labor & Indus.,
694 F.2d 203, 204 (9th Cir. 1982); see also Missouri v. Harris, No. 2:14-CV00341-KJM, 2014 WL 2987284, at *2 (E.D. Cal. July 1, 2014) (citing Hoptowit v.
Ray, 682 F.2d 1237, 1260 (9th Cir. 1982), abrogated on other grounds by Sandin v.
Conner, 515 U.S. 472 (1995)) (discussing district courts’ “broad discretion
regarding the appointment of amici”). A similar brief filed by amicus curiae The
Korematsu Center was accepted by the Ninth Circuit in its review of Executive
Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).
Plaintiffs’ Complaint concerns an American citizen whose wife is
Syrian, and whose Syrian mother-in-law will be unable to obtain a visa to visit him
in the United States as a result of Executive Order No. 13780, 82 Fed. Reg. 13209
(Mar. 6, 2017) (“Executive Order”). Compl. at 6, 25. The Complaint also asserts
that the new Executive Order affects the interest of the Plaintiff State of Hawaii,
which is home to a large body of foreign workers and students, and whose
residents will be unable to receive family from the six affected countries. Compl.
at 27.
Plaintiffs seek a nationwide injunction against the implementation of
Sections 2 and 6 of the Executive Order. Compl. at 37. Amici write to address the
plenary power doctrine, upon which Defendants have relied in similar challenges
to the prior Executive Order, as support for limiting the judicial branch’s authority
to scrutinize the exercise of the President’s executive power in the realms of
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immigration and national security. The proposed Brief of Amici Curiae seeks to
demonstrate that the plenary power doctrine derived from decisions such as Chae
Chan Ping v. United States, 130 U.S. 581 (1889) (the “Chinese Exclusion Case”)
and its progeny, and is premised on outdated racist and nativist precepts that we
now reject, as well as outdated understandings of sovereignty. Amici urge this
court to consider the historical conditions under which the plenary power doctrine
developed and the historical actions that the doctrine has been used to justify,
which modern courts now recognize as anathema.
As the proposed Brief of Amici Curiae details, the influence of the
plenary power doctrine has been steadily eroded.
Separately, but equally
significant, the proposed Brief of Amici Curiae reviews the historical threads of
cases that abdicated judicial review of executive and legislative actions against
entire races or nationalities and provided judicial sanction of discriminatory action
taken against disfavored minorities.
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CONCLUSION
For these reasons, the court should grant this Motion, and permit the
Korematsu Center, Jay Hirabayashi, Holly Yasui, Karen Korematsu, Civil Rights
Organizations, and National Bar Associations of Color to file their concurrently
submitted Brief of Amici Curiae.
DATED: Honolulu, Hawai`i, March 10, 2017.
Respectfully submitted,
/s/ LOUISE K.Y. ING
LOUISE K.Y. ING
CLAIRE WONG BLACK
PRATIK A. SHAH*
ROBERT A. JOHNSON*
JESSICA M. WEISEL*
ERIC YAMAMOTO
Attorneys for amici curiae
* pro hac vice application pending
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