International Refugee Assistance Project et al v. Trump et al

Filing 116

MOTION for Leave to File Amicus Brief of the Roderick & Solange MacArthur Justice Center by Roderick & Solange MacArthur Justice Center (Attachments: # 1 Text of Proposed Order, # 2 Exhibit 1-Proposed Amicus Brief, # 3 Memorandum in Support for Motion for Leave)(Nannis, Veronica)

Exhibit 1
Proposed
BRIEF OF THE
RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
(SOUTHERN DIVISION)
_________________________________
)
INTERNATIONAL REFUGEE
)
ASSISTANCE PROJECT, et al.,
)
)
Plaintiffs,
)
)
vs.
)
)
DONALD J. TRUMP, et al.,
)
)
Defendants.
)
)
________________________________ )

Civil Action No
8:17-CV-00361-TDC

BRIEF OF THE
RODERICK AND SOLANGE MACARTHUR JUSTICE CENTER
AS AMICUS CURIAE IN SUPPORT OF PLAINTIFFS’ MOTION
FOR A TEMPORARY RESTRAINING ORDER

Amir H. Ali
(pro hac vice admission pending)
Roderick & Solange MacArthur Justice Center
718 7th St. NW
Washington D.C. 20036
P: [phone]
F: [phone]
[e-mail]

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... ii
I.

INTRODUCTION AND SUMMARY OF ARGUMENT ..................................................1

II.

ARGUMENT .......................................................................................................................3
A.

The President Has Expressed Hatred, Disseminated Lies, And Made
Numerous Promises To Use The Executive Power Against Muslims. ....................3
1.

The President repeatedly refers to people of the Muslim faith as a
“problem” and spreads propaganda to vilify them. .....................................3
a.
b.

2.

Advocating that Muslims are a “problem” ..................................... 3
Advocating anti-Muslim propaganda, including that
thousands of Muslims celebrated 9/11 on New Jersey
rooftops and praising the mass execution of Muslims with
bullets dipped in pigs blood ............................................................ 5

The President has equated Muslims with terrorists, calling for
closing down and surveilling mosques, profiling Muslims, and a
Muslim registry. ...........................................................................................9
a.

Advocating closing down and surveilling mosques........................ 9

b.

Requiring a registry for all Muslims in the United States ............ 11

c.

Advocating racial profiling of Muslims ........................................ 13

3.

4.

B.
III.

The President has advocated banning people of the Muslim faith
from the United States and previewed that he would do so under the
guise of a neutral order. .............................................................................13
The President’s statements since being elected—and even after
signing the Executive Orders—make clear that this Executive action
is motivated by the same discriminatory animus. ......................................20

Failing To Consider This Tremendous Record Of Animus Would Be A
Serious Abdication Of The Role Of The Judicial Branch. ....................................22

CONCLUSION ..................................................................................................................24

i

TABLE OF AUTHORITIES
Page(s)
Cases
Boumediene v. Bush,
553 U.S. 723 (2008) .......................................................................................................... 23
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) .......................................................................................................... 23
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .............................................................................................................. 23
Korematsu v. United States,
323 U.S. 214 (1944) ...................................................................................................... 2, 17
United States v. Carolene Products Co.,
304 U.S. 144 (1938) .......................................................................................................... 22
United States v. Windsor,
133 S. Ct. 2675 (2013) ...................................................................................................... 23
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
429 U.S. 252 (1977) .......................................................................................................... 22
Other Authorities
Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379 (2011) ...................................................... 23
Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257
(2004) ................................................................................................................................ 23

ii

I.

INTRODUCTION AND SUMMARY OF ARGUMENT

This President of the United States, Donald Trump, selected an unpopular minority faith
that makes up 1% of the nation’s population, ran a campaign that vilified and spread propaganda
generating fear and animosity towards that minority faith, and built an administration that has
consistently equated the members of that minority faith with terrorists. President Trump and his
administration now expects courts to turn a blind eye to—or, as the Government has urged “not
look” at—that record of animus and, instead, accept the Government’s pretextual assertion of
national security. See Emergency Motion Under Circuit Rule 27-3 for Administrative Stay and
Motion for Stay Pending Appeal at 17, Washington v. Trump, No, 17-35105 (9th Cir. Feb. 4, 2017),
ECF No. 14. If this Court were to do so, it would amount to an abdication of its critical role in
safeguarding discrete and insular minorities, and preventing the Executive from using its official
powers to attack unpopular groups—the sort of abdication that has, in the past, left a permanent
stain on American history.
The MacArthur Justice Center submits this amicus brief to document President Trump’s
extensive record of hatred towards people of the Muslim faith. As described herein, President
Trump’s latest Executive Order is but one action that follows from a targeted and sustained attack
on Muslims, through which the President has increased his own popularity by spreading fear about
Muslims and labeled them as terrorists. President Trump has long expressed the view that there is
a “Muslim problem” in the United States and disseminated propaganda vilifying people of the
Muslim faith. Prior to being elected President, he made specific promises to curtail the rights of
those who choose to practice Islam in various ways, including the shutdown of mosques and the
suspicionless surveillance and profiling of Muslim Americans. Moreover, not only did Mr. Trump
specifically promise he would ban Muslims from entering the United States during his Presidential

campaign, but he previewed that he would do so under the guise of referring to “territories” and
“extreme vetting” instead of mentioning Muslims directly. Mr. Trump expressly justified his plans
by reference to the detention and internment of Japanese Americans during World War II.
President Trump’s latest Executive Order, which attempts to follow through on his animus
and promises, must be viewed in light of President Trump’s public, repeated, and unabashed
admission of an intent to discriminate—the most fundamental abuse of government power that the
Establishment and Equal Protection Clauses exist to prevent. The Government’s contention that
such Executive action is unreviewable, or entitled to great deference due to its relation to
immigration and national security, not only conflicts with United States Supreme Court precedent,
but is painfully reminiscent of arguments made by the Government to justify racial discrimination
and oppression in moments of our history that we now all regard with shame. Indeed, it is chilling
the degree to which the position advanced by the Government here, with the most technical of
modifications, mirrors the closing passage of Korematsu v. United States, 323 U.S. 214 (1944),
used to justify the internment of Japanese Americans in 1944:
To cast this case into outlines of [religious] prejudice, without reference to the real
military dangers which were presented, merely confuses the issue. [Muslims were]
not excluded from the [United States] because of hostility to [them] or [their
religion]. [They were] excluded because we are at war with [radical Islamic
terrorism], because the [President] feared an invasion of our [country] and felt
constrained to take proper security measures, because [he] decided that the military
urgency of the situation demanded that all [persons of Muslim religion] be
segregated from the [United States] temporarily, and, finally, because [the
President], reposing [his] confidence in this time of war in our military leaders . . .
determined that [he] should have the power to do just this. There was evidence of
disloyalty on the part of some [Muslims], the [President] considered that the need
for action was great, and time was short. We cannot—by availing ourselves of the
calm perspective of hindsight—now say that at that time these actions were
unjustified.
Id. at 233 (with modification in brackets).

2

The MacArthur Justice Center urges the Court not to allow a repeat of this depraved
moment in United States history by overlooking the record of this administration’s animus against
persons of the Muslim faith.

II.
A.

ARGUMENT

The President Has Expressed Hatred, Disseminated Lies, And Made
Numerous Promises To Use The Executive Power Against Muslims.

As described below, President Trump has shown animus towards Muslims and promised
to use the office of the Executive to oppress Muslims in various ways, including statements and
propaganda that vilify Muslims, threaten to shutdown and surveille mosques, profile Muslims, and
ban Muslims from entering the country. He even previewed that he would attempt to do so using
language that appears more neutral, such as referring to Muslim-majority territories—precisely
what he did here. While the administration has taken greater efforts to veil its discriminatory and
Islamophobic purpose in the latest Executive Order, it would be a serious mistake to assume that
this washes the Order clean of its reprehensive motivation.

1.

The President repeatedly refers to people of the Muslim faith as a
“problem” and spreads propaganda to vilify them.

a.

Advocating that Muslims are a “problem”

As early as April 11, 2011, Mr. Trump began advocating a “Muslim problem” exists in the
United States, and suggesting that the Koran teaches a “very negative vibe” and “tremendous
hatred”:
Bill O’Reilly asked me is there a Muslim problem? And I said absolutely, yes. In fact I
went a step further. I said I didn’t see Swedish people knocking down the World Trade
Center. . . . I mean I could have said, ‘Oh absolutely not Bill, there’s no Muslim problem,
everything is wonderful, just forget about the World Trade Center.’ But you have to speak
the truth. . . . The Koran is very interesting. A lot of people say it teaches love and there is
a very big group of people who really understand the Koran far better than I do. I’m
certainly not an expert, to put it mildly. But there’s something there that teaches some very
negative vibe. . . . There’s a lot of hatred there that’s some place. Now I don’t know if

3

that’s from the Koran. I don’t know if that’s from some place else. But there’s tremendous
hatred out there that I’ve never seen anything like it.1
The President has since repeatedly echoed these views of Muslims. On September 18, 2015, at a
town hall event in Rochester, New Hampshire, Mr. Trump had the following exchange with a
questioner:
Questioner: “We have a problem in this country. It’s called Muslims.”
Mr. Trump: “Right.”
Questioner: “You know our current president is one. You know he’s not even an
American.”
Mr. Trump: “We need this question.”2
On December 10, 2015, Mr. Trump posted three separate statements on Twitter referring
to “a massive Muslim problem” and associating Muslims with terrorism:


“The United Kingdom is trying hard to disguise their massive Muslim problem.
Everybody is wise to what is happening, very sad! Be honest.”3



“Thank you to respected columnist Katie Hopkins . . . for her powerful writing on the
U.K.’s Muslim problems.”4



“In Britain, more Muslims join ISIS than join the British army.”5

David Brody, Brody File Exclusive: Donald Trump Says Something in Koran Teaches a ‘Very
Negative Vibe,’ CBN News (Apr. 12, 2011),
http://www1.cbn.com/thebrodyfile/archive/2011/04/12/brody-file-exclusive-donald-trump-sayssomething-in-koran-teaches; Donald Trump warns of the Muslim Problem, YouTube (Apr. 11,
2011), https://m.youtube.com/watch?v=fWzDAvemJG8.
2
Jonathan Merritt, Trump’s Proposals Could Backfire on Christians, The Atlantic (Nov. 24,
2015), https://www.theatlantic.com/politics/archive/2015/11/donald-trump-muslimschristians/417255/; Theodore Schleifer, Trump doesn’t challenge anti-Muslim questioner at
event, CNN (Sept. 18, 2015), http://www.cnn.com/2015/09/17/politics/donald-trump-obamamuslim-new-hampshire/.
3
Donald J. Trump, Twitter (Dec. 10, 2015),
https://twitter.com/realdonaldtrump/status/674934005725331456?lang=en.
4
Donald J. Trump, Twitter (Dec. 10, 2015),
https://twitter.com/realdonaldtrump/status/674936832010887168?lang=en.
5
Donald J. Trump, Twitter (Dec. 10, 2015),
https://twitter.com/realdonaldtrump/status/675123192864899072?lang=en.
1

4

The President has defended his view that people of the Muslim faith are a “problem” and
vilified them on numerous other occasions:


On February 4, 2016, on national television on CNN, Mr. Trump was asked: “Is it really
a Muslim problem, or is it a radical Islamist problem?” He responded: “Maybe it’s a
Muslim problem, maybe it’s not.”6



On March 9, 2016, on national television on CNN, Mr. Trump told Anderson Cooper, “I
think Islam hates us” and that Muslims have “tremendous hatred” and “unbelievable
hatred.” He rejected that a distinction could be drawn between radical Islam and Islam
itself, claiming “[i]t’s very hard to define.”7



The following day, on March 10, 2016, on national television, Mr. Trump was asked
whether when previously saying “Islam hates us,” he was referring to all 1.6 billion
Muslims in the world. He responded: “I mean a lot of them. I mean a lot of them.” When
given another opportunity to clarify, he stated: “There’s something going on that maybe
you don’t know about, maybe a lot of other people don’t know about, but there’s
tremendous hatred. And I will stick with exactly what I said to Anderson Cooper.”8



On June 13, 2016, at a Presidential campaign event in Manchester, New Hampshire, Mr.
Trump said: “Refugees are trying to take over our children” by telling them “how
wonderful Islam is,” and equated Islam with ISIS.9

b.

Advocating anti-Muslim propaganda, including that thousands of
Muslims celebrated 9/11 on New Jersey rooftops and praising the
mass execution of Muslims with bullets dipped in pigs blood

The President has gone further, disseminating propaganda vilifying Muslim people. On
November 21, 2015, at a rally in Birmingham, Alabama, in front of thousands of Americans and
rebroadcast numerous times on national television Mr. Trump proclaimed: “Hey, I watched when

6

CNN Interview of Donald Trump, YouTube (Feb. 4, 2016),
https://www.youtube.com/watch?v=uW9UlMqJtro (minutes 18:42 to 18:46).
7
Theodore Schleifer, Donald Trump: ‘I think Islam hates us’, CNN (Mar. 10, 2016),
http://www.cnn.com/2016/03/09/politics/donald-trump-islam-hates-us/.
8
Transcript of Republican Debate in Miami, CNN (Mar. 15, 2016)
http://www.cnn.com/2016/03/10/politics/republican-debate-transcript-full-text/.
9
Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (Jun. 13, 2016)
https://www.c-span.org/video/?410976-1/donald-trump-delivers-remarks-national-securitythreats (minutes 20:05 to 20:30).

5

the World Trade Center came tumbling down. And I watched in Jersey City, New Jersey, where
thousands and thousands of people were cheering as that building was coming down. Thousands
of people were cheering.”10 In the face of the authorities and articles debunking his claim,11 Mr.
Trump continued to spread fear based on this lie on numerous additional occasions:


On November 22, 2015, on national television on ABC: “It did happen. I saw it. It was
on television. I saw it. George, it did happen. There were people that were cheering on
the other side of New Jersey, where you have large Arab populations. They were cheering
as the World Trade Center came down. I know it might be not politically correct for you
to talk about it, but there were people cheering as that building came down—as those
buildings came down. And that tells you something. It was well covered at the time,
George. Now, I know they don’t like to talk about it, but it was well covered at the time.
There were people over in New Jersey that were watching it, a heavy Arab population, that
were cheering as the buildings came down. Not good.”12



On November 23, 2015, at a rally in Columbus, Ohio: “I saw people getting together and,
in fairly large numbers, celebrating as the World Trade Center was coming down, killing
thousands of people, thousands and thousands of people. People are still dying over what
happened with the World Trade Center. And they’re dying a terrible death. And I saw
people. And I saw them on television and I read about it on the Internet and I read about
it.”13



On November 25, 2015, Mr. Trump tweeted: “Credible Source on 9-11 Muslim
Celebrations: FBI” and linked to an article stating that a retired FBI agent referred to his
claims as “plausible[.]”14

Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated
the 9/11 attacks, Washington Post (Nov. 22, 2015), https://www.washingtonpost.com/news/factchecker/wp/2015/11/22/donald-trumps-outrageous-claim-that-thousands-of-new-jersey-muslimscelebrated-the-911-attacks/.
11
See, e.g., Lauren Carroll, Fact Checking Trump’s claim that thousands in New Jersey cheered
when World Trade Center tumbled, Politifact (Nov. 22, 2015), http://www.politifact.com/truth-ometer/statements/2015/nov/22/donald-trump/fact-checking-trumps-claim-thousands-new-jerseych/.
12
Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated
the 9/11 attacks, Washington Post (Nov. 22, 2015), https://www.washingtonpost.com/news/factchecker/wp/2015/11/22/donald-trumps-outrageous-claim-that-thousands-of-new-jersey-muslimscelebrated-the-911-attacks/.
13
Jenna Johnson, Donald Trump on waterboarding: “If it doesn’t work, they deserve it anyway,’
Washington Post (Nov. 23, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/11/23/donald-trump-on-waterboarding-if-it-doesnt-work-they-deserve-itanyway/.
14
Donald J. Trump, Twitter (Nov. 25, 2015),
https://twitter.com/realdonaldtrump/status/669682774673137665?lang=en; see also Bill Riales,
10

6



On December 2, 2015, Mr. Trump shared another individual’s tweet claiming to have
seen “militant Muslims burning our flag and burning George Bush photos and figures,
right after 9/11!”15



On December 7, 2015, Mr. Trump shared his November 25, 2015, post on Twitter calling
his claim “plausible” a second time.16
Furthermore, in multiple rallies in front of thousands of Americans and rebroadcast on

national television, Mr. Trump suggested that U.S. counter-terrorism policy should “go much
further” than waterboarding suspected terrorists and praised a false story involving the mass
murder of Muslims using pigs blood. During a February 19, 2016, rally in North Charleston, South
Carolina—treating “terrorist” as a synonym for “Muslim”—Mr. Trump approvingly recounted the
following legend:
You know, I a read story—it’s a terrible story, but I’ll tell you. Should I tell you? Or should
I not? [crowd cheering] Early in the century, last century. General Pershing. Did you ever
hear—rough guy. And they had a terror problem. And you know there’s a whole thing with
swine and animals and pigs and you know the story, they don’t like that. And they were having
a tremendous problem with terror. . . General Pershing was a rough guy, and he sits on his
horse and he’s very astute like a ramrod. . . . And he caught 50 terrorists who did tremendous
damage and killed many people. And he took the 50 terrorists, and he took 50 men and he
dipped 50 bullets in pigs’ blood—you heard that, right? He took 50 bullets, and he dipped
them in pigs’ blood. And he had his men load his rifles, and he lined up the 50 people, and
they shot 49 of those people. And the 50th person, he said: “You go back to your people, and
you tell them what happened.” And for 25 years, there wasn’t a problem. Okay? Twenty-five
years, there wasn’t a problem.17

Credible Source on 9-11 Muslim Celebrations: FBI, WKRG (Nov 25, 2015)
http://wkrg.com/2015/11/25/credible-source-on-9-11-muslim-celebrations-fbi/.
15
Donald J. Trump, Twitter (Dec 2, 2015),
https://twitter.com/realDonaldTrump/status/672182509111767041.
16
Donald J. Trump, Twitter (Dec 7, 2015),
https://twitter.com/realdonaldtrump/status/673905762087936000?lang=en; see also Bill Riales,
Credible Source on 9-11 Muslim Celebrations: FBI, WKRG (Nov. 25, 2015),
http://wkrg.com/2015/11/25/credible-source-on-9-11-muslim-celebrations-fbi/.
17
Louis Jacobson, Donald Trump cites dubious legend about Gen. Pershing, pig’s blood and
Muslims, Politifact (Feb. 23, 2016), http://www.politifact.com/truth-ometer/statements/2016/feb/23/donald-trump/donald-trump-cites-dubious-legend-about-genpershi/; Jenna Johnson and Jose A. DelReal, Trump tells story about killing terrorists with bullets
dipped in pigs’ blood, though there’s no proof of it, Washington Post (Feb. 20, 2016),
https://www.washingtonpost.com/news/post-politics/wp/2016/02/20/trumps-story-about-killingterrorists-with-bullets-dipped-in-pigs-blood-is-likely-not-true/; see also David Mikkelson,

7

Mr. Trump continued to repeat the same anti-Muslim propaganda in front of thousands of
Americans at campaign rallies, adding new flourish. On March 11, 2016, at a rally in Dayton,
Ohio, for instance, Mr. Trump told the same legend about General Pershing, again equating being
a terrorist to being a Muslim throughout:
So General Pershing, tough, tough guy, and he had the whole deal going. And they catch 50
terrorists in the Philippines, and they were doing tremendous destruction. And what happens
is he lines them up to be shot. He lines them up, gets them, knows they’re guilty, they’ve
admitted their guilt. Lines 50 people up to be shot. And as you know, swine, pig, a big problem
for them, big problem. He took two pigs, they chopped them open. Took the bullets that were
going to go and shoot these men. Took the bullets, the 50 bullets, dropped them in the pigs,
swished them around, so there was blood all over those bullets. Had his men, instructed his
men to put the bullets into the rifles. They put the bullets into the rifles. And they shot 49
men. [crowd cheering] We don’t like this, but I’m just saying, if we’re going to win, we’re
going to win or let’s not play the game and let’s not be a country any more. They put the
bullets in the rifles and they shot 49 of the 50 men. Dead. Boom. So it was a pig-infested bullet
in each one.
That’s not the end. Here’s the end, want to hear the end? He went back and he said what just
happened. For 28 years, there was no terrorism. . . . We’re either going to win the battle or
we’re going to lose the battle. We have to do what we have to do. We have to clean it out.
These are people that have horrible thoughts. These are people that have visions that you
wouldn’t believe.”18

Pershing the Thought, Snopes (Apr. 28, 2016), http://www.snopes.com/rumors/pershing.asp,
debunking Mr. Trump’s story about General Pershing.
18
Mr. Trump also equated being a terrorist with being Syrian, breaking in the middle of his story
about General Pershing to say, “And by the way, we have to get to the bottom of it, we cannot
allow people to come into the country who want to destroy us, we cannot do it. We can’t allow
the Syrians. We can’t allow the migration of the Syrians into the country.” FULL Speech: Donald
Trump
rally
in
Dayton,
OH
3-12-2016,
YouTube
(Mar.
12,
2016),
https://www.youtube.com/watch?v=-9KOAHf4GCw (minutes to 42:45 to 46:45); Mark Z.
Barabak, All in a day’s Trump rally: sneering, sarcasm, protests, Los Angeles Times (Mar. 12,
2016), http://www.latimes.com/nation/politics/la-na-trump-rallies-20160312-story.html; see also
Lydia Wheeler, Trump resurrects story of Muslims shot with pig’s blood-dipped bullets, The Hill
(Mar. 12, 2016), http://thehill.com/blogs/blog-briefing-room/news-campaigns/272780-trumpresurrects-story-of-muslims-shot-with-pigs.

8

2.

The President has equated Muslims with terrorists, calling for closing
down and surveilling mosques, profiling Muslims, and a Muslim registry.

a.

Advocating closing down and surveilling mosques

The President has, on numerous occasions, called for the closing of mosques in America.
On November 16, 2015, for instance, Mr. Trump stated on national television on NBC that he
would consider shutting down mosques if elected—again equating the practice of Islam with terror
and hatred: “I would hate to do it, but it’s something that you’re going to have to strongly consider
because some of the ideas and some of the hatred—the absolute hatred—is coming from these
areas.”19
Two days later, again on national television on Fox News, Mr. Trump was asked whether
he would actually shutdown mosques and responded that there was “absolutely no choice” but to
do so: “Nobody wants to say this and nobody wants to shut down religious institutions or anything,
but you know, you understand it. A lot of people understand it. We’re going to have no choice.
There’s absolutely no choice.”20
The President has called for shutting down mosques or the suspicionless surveillance of
Muslims in mosques on numerous other occasions:


On October 21, 2015, Mr. Trump told Fox Business’s Stuart Varney that he was “going to
have to certainly look at” closing mosques in the United States.21

Jenna Johnson, Donald Trump would ‘strongly consider’ closing some mosques in the United
States, Washington Post (Nov. 16, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/11/16/donald-trump-would-strongly-consider-closing-some-mosques-in-theunited-states/.
20
Nick Gass, Trump: ‘Absolutely no choice’ but to close mosques, Politico (Nov. 18, 2015),
http://www.politico.com/story/2015/11/trump-close-mosques-216008; Trump says US will ‘have
no choice’ but to shut some mosques down, Fox News (Nov. 18, 2015),
http://www.foxnews.com/politics/2015/11/17/trump-says-us-will-have-no-choice-but-to-shutmosques-down.html.
21
Sarah Pulliam Bailey, Donald Trump says he would consider closing down some mosques in
the U.S., Washington Post (Oct. 21, 2015), https://www.washingtonpost.com/news/acts-of19

9



On November 16, 2015, on national television on NBC, Mr. Trump said, “You’re going to
have to watch and study the mosques, because a lot of talk is going on at the mosques.”22



On November 19, 2015, Yahoo News asked Mr. Trump whether his push for increased
surveillance of American Muslims could include warrantless searches. He suggested he
would consider a series of drastic measures against Muslims: “We’re going to have to do
things that we never did before. And some people are going to be upset about it, but I think
that now everybody is feeling that security is going to rule. And certain things will be done
that we never thought would happen in this country in terms of information and learning
about the enemy. And so we’re going to have to do certain things that were frankly
unthinkable a year ago.”23



At a November 21, 2015 rally in Birmingham, Alabama, Mr. Trump stated, “So here’s the
story—just to say it clear—I want surveillance of these people. I want surveillance if we
have to, and I don’t care. Are you ready for this folks? Are you ready? They’re going to
make it such a big deal . . . I want surveillance of certain mosques if that’s okay.”24



On December 7, 2015, at a rally in Mount Pleasant, South Carolina, Mr. Trump called for
the surveillance of mosques, again equating the Muslim religion with hatred and terror:
“Yes, we have to look at mosques and we have to respect mosques, but yes, we have to
look at mosques. We have no choice. We have to see what’s out there, because something
is happening in there. Man, there’s anger. There’s anger. And we have to know about
it.”25

faith/wp/2015/10/21/donald-trump-says-he-would-consider-closing-down-some-mosques-in-theu-s/.
22
Lauren Carroll, In Context: Donald Trump’s comments on a database of American Muslims,
Politifact (Nov. 24, 2015), http://www.politifact.com/truth-o-meter/article/2015/nov/24/donaldtrumps-comments-database-american-muslims/; Louis Jacobson, Donald Trump says he never
called for profiling Muslims, Politifact (Sept. 21, 2016), http://www.politifact.com/truth-ometer/statements/2016/sep/21/donald-trump/donald-trump-says-he-never-called-profilingmuslim/.
23
Hunter Walker, Donald Trump has big plans for ‘radical Islamic’ terrorists, 2016 and ‘that
communist’ Bernie Sanders, Yahoo News (Nov. 19, 2015),
https://www.yahoo.com/news/donald-trump-has-big-plans-1303117537878070.html.
24
Louis Jacobson, Donald Trump says he never called for profiling Muslims, Politifact (Sept.
21, 2016), http://www.politifact.com/truth-o-meter/statements/2016/sep/21/donaldtrump/donald-trump-says-he-never-called-profiling-muslim/.
25
Jessica Taylor, Trump Calls for ‘Total and Complete Shutdown of Muslims Entering’ U.S.,
NPR (Dec. 7, 2015), http://www.npr.org/2015/12/07/458836388/trump-calls-for-total-andcomplete-shutdown-of-muslims-entering-u-s; Transcript, Trump Calls for Ban on Muslims
Entering the U.S., CNN (Dec 8, 2015),
http://www.cnn.com/TRANSCRIPTS/1512/08/es.02.html.

10



On June 13, 2016, on national television on Fox, Mr. Trump stated: “We have to be very
strong in terms of looking at the mosques, you know, which a lot of people say, ‘Oh, we
don’t want to do that. We don’t want to do that.’ We’re beyond that.”26



On June 15, 2016, at a rally in Atlanta, Georgia, Mr. Trump stated: “We have to go and
we have to maybe check, respectfully, the mosques.”27
On June 19, 2016, on national television on CBS, Mr. Trump was asked what it means to
“respectfully check a mosque” and answered with the suspicionless surveillance and
shutdown of mosques: “Well, you do as they used to do in New York, prior to this mayor
dismantling. By the way, if you go to France right now, they’re doing it in France. In fact,
in some instances, they are closing down mosques. People don’t want to talk about it.
People aren’t talking about it. But look at what they’re doing in France. They are actually
closing down mosques.”28

b.

Requiring a registry for all Muslims in the United States

Before and after being elected President, Mr. Trump stated his plan to have a registry for
all people practicing the Muslim faith. On November 19, 2015, Yahoo News asked Mr. Trump
whether he would require Muslims to register or carry a special form of identification that noted
their religion. He responded: “We’re going to have to look at a lot of things very closely. We’re
going to have to look at the mosques. We’re going to have to look very, very carefully.”29
The following day, in Newton, Iowa, Mr. Trump was pointedly asked whether he was in
favor of implementing a database tracking Muslims in the United States and Mr. Trump responded

26

Louis Jacobson, Donald Trump says he never called for profiling Muslims, Politifact (Sept.
21, 2016), http://www.politifact.com/truth-o-meter/statements/2016/sep/21/donaldtrump/donald-trump-says-he-never-called-profiling-muslim/.
27
Jeremy Diamond, Trump doubles down on calls for mosque surveillance, CNN (Jun. 15,
2016), http://www.cnn.com/2016/06/15/politics/donald-trump-muslims-mosque-surveillance/.
28
Face the Nation transcripts June 19, 2016: Trump, Lunch, LaPierre, Feinstein, CBS News
(Jun. 19, 2016), http://www.cbsnews.com/news/face-the-nation-transcripts-june-19-2016-trumplynch-lapierre-feinstein/; Louis Jacobson, Donald Trump says he never called for profiling
Muslims, Politifact (Sept. 21, 2016), http://www.politifact.com/truth-ometer/statements/2016/sep/21/donald-trump/donald-trump-says-he-never-called-profilingmuslim/.
29
Hunter Walker, Donald Trump has big plans for ‘radical Islamic’ terrorists, 2016 and ‘that
communist’ Bernie Sanders, Yahoo News (Nov. 19, 2015),
https://www.yahoo.com/news/donald-trump-has-big-plans-1303117537878070.html.

11

that he would “absolutely” do so: “There should be a lot of systems, beyond databases. We should
have a lot of systems. And today you can do it. . . . Oh I would certainly implement that.
Absolutely.”30 When asked whether Muslims would be legally obligated to sign into the database,
Mr. Trump responded, “They have to be—they have to be.”31 When asked how the idea for
registering Muslims was different from the Nazi’s registrations of Jewish people, Mr. Trump
responded four times, “You tell me.”32
The President has echoed his call for a registry of all Muslims in America on several
occasions:
 November 21, 2015, at a rally in Birmingham, Alabama, Mr. Trump reaffirmed his desire
for a registry: “So the database—I said yeah, that’s alright fine, but database is okay, and
watch list is okay, and surveillance is okay. If you don’t mind, I want to be—I want to
surveil.”33
 The following day, on November 22, 2015, on national television on ABC, Mr. Trump was
asked: “You did stir up a controversy with those comments over the database. Let’s try
to clear that up. Are you unequivocally now ruling out a database on all Muslims?” He
responded, “No not at all.”34
 The day following that, at a November 23, 2015 rally in Columbus, Ohio, Mr. Trump
stated: “We have to really be vigilant with respect to the Muslim population . . . We have
great Muslims. But we have to surveil; we have to create lists; we have the refugees
coming in and we have to create lists.”35

Vaughn Hillyard, Donald Trump’s Plan for a Muslim Database Draws Comparison to Nazi
Germany, NBC News (Nov. 20, 2015), http://www.nbcnews.com/politics/2016-election/trumpsays-he-would-certainly-implement-muslim-database-n466716.
31
Id.
32
Id.
33
FULL Speech HD: Donald Trump MASSIVE Rally in Birmingham, AL (11-21-2015),
YouTube (Nov. 21, 2015) https://www.youtube.com/watch?v=kmPqV41bfC0 (minutes 42:58 to
43:08).
34
Lauren Carroll, In Context: Donald Trump’s comments on a database of American Muslims,
Politifact (Nov. 24, 2015), http://www.politifact.com/truth-o-meter/article/2015/nov/24/donaldtrumps-comments-database-american-muslims/.
35
Donald Trump in Ohio: U.S. has become ‘soft, weak,’ Dayton Daily News (Nov. 23, 2015),
http://www.daytondailynews.com/news/national-govt--politics/donald-trump-ohio-has-becomesoft-weak/5ZOBQutE4XSjTxV2NjvFnJ/.
30

12

c.

Advocating racial profiling of Muslims

On June 19, 2016, on national television on CBS, Mr. Trump advocated the profiling of
Muslims in America as “common sense”:
John Dickerson:

Just as a bottom line here, are you talking about increasing
profiling of Muslims in America?

Mr. Trump:

Well, I think profiling is something that we’re going to have
to start thinking about as a country. And other countries do
it.
And you look at Israel and you look at others, and they do it.
And they do it successfully. And I hate the concept of
profiling. But we have to start using common sense, and we
have to use—we have to use our heads.36

Mr. Trump later went further and stated that he believes there is “no choice” but to profile Muslim
and Arab men. On September 19, 2016, on national television on Fox, for instance, Mr. Trump
gave the following response:
Bill O’Reilly:

Now, another thing you said that was very controversial is
that you want to profile. You want to profile Arab or Muslim
men. How would that work?

Mr. Trump:

Well, we have no choice. Look, Israel does it. And Israel
does it very successfully.

3.

The President has advocated banning people of the Muslim faith from the
United States and previewed that he would do so under the guise of a
neutral order.

Prior to becoming President, Mr. Trump promised that, if elected, he would ban Muslims
from the United States and specifically telegraphed that he would do so by speaking in terms of
“territories” and “extreme vetting” instead of using the word “Muslim.” He also previewed that,

36

Face the Nation transcripts June 19, 2016: Trump, Lynch, LaPierre, Feinstein, CBS News
(June 19, 2016), http://www.cbsnews.com/news/face-the-nation-transcripts-june-19-2016-trumplynch-lapierre-feinstein/.

13

upon doing so, he would invoke the President’s “powers to suspend entry into the country of any
class of persons . . . as he or she deems appropriate”37—just as the Government is attempting to
do here—and has consistently justified that position with reference to the detention and internment
of Japanese Americans during World War II.
On December 7, 2015, Mr. Trump announced on his Presidential campaign website:
“Donald J. Trump is 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.”38 The same day that
Mr. Trump issued this announcement, he tweeted it with the name “Statement on Preventing
Muslim Immigration.”39 Further equating Muslims with hatred and terror, he tweeted, “Just put
out a very important policy statement on the extraordinary influx of hatred & danger coming into
our country. We must be vigilant!”40 At a rally that took place that day in Mount Pleasant, South
Carolina, Mr. Trump called for for “a total and complete shutdown of Muslims,” and added: “We
have no choice. We have no choice. We have no choice.” 41 Mr. Trump also appeared on national
television on Fox News to advocate his desire for a ban on Muslims.42

37

Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (June 13, 2016),
https://www.c-span.org/video/?410976-1/donald-trump-delivers-remarks-national-securitythreats.
38
Press Release, Trump-Pence, Donald J. Trump Statement on Preventing Muslim Immigration
(Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration (last visited on March 10, 2017).
39
Donald J. Trump, Twitter (Dec. 7, 2015),
https://twitter.com/realdonaldtrump/status/673993417429524480.
40
Jenna Johnson, Trump calls for ‘total and complete shutdown of Muslims entering the United
States,’ Washington Post (Dec. 7, 2015), https://www.washingtonpost.com/news/postpolitics/wp/2015/12/07/donald-trump-calls-for-total-and-complete-shutdown-of-muslimsentering-the-united-states/.
41
Id.
42
Id.

14

The President’s call for a total and complete shutdown of Muslims entering the United
States remains on his website as of today.43
On December 8, 2015, the day following the announcement of his intent to ban Muslims,
Mr. Trump was asked on national television on NBC whether such a “broad approach against all
Muslims” would be counterproductive, instead of targeting people the Government had reason to
believe should be investigated. Mr. Trump confirmed that he intended the ban to apply to all
Muslims and justified it with reference to President Franklin D. Roosevelt’s World War II
Executive Proclamations authorizing the detention and internment of Japanese, German, and
Italian aliens:
It’s not unconstitutional keeping people out, frankly, and until we get a hold of
what’s going on. And then if you look at Franklin Roosevelt, a respected president,
highly respected. Take a look at Presidential proclamations back a long time ago,
2525, 2526, and 2527 what he was doing with Germans, Italians, and Japanese
because he had to do it. Because look we are at war with radical Islam. We are at
war.44
When asked how border officials would practically implement the ban he was proposing, Mr.
Trump responded: “They would say, ‘are you Muslim?’” The NBC commentator further
questioned: “And if they said yes, they would not be allowed in the Country?” Mr. Trump
responded, “That’s correct.”45

43

Press Release, Trump-Pence, Donald J. Trump Statement on Preventing Muslim Immigration
(Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-onpreventing-muslim-immigration (last visited on March 10, 2017).
44
Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015)
https://www.youtube.com/watch?v=5I3E3-U-1jc; Michael Barbaro and Alan Rappeport, In Testy
Exchange, Donald Trump Interrupts and ‘Morning Joe’ Cuts to Commercial, New York Times
(Dec. 8, 2015), https://www.nytimes.com/politics/first-draft/2015/12/08/in-testy-exchangedonald-trump-interrupts-and-morning-joe-cuts-to-commercial/.
45
Donald Trump On Muslim Travel Ban, Obama And 2016, YouTube (Dec. 8, 2015)
https://www.youtube.com/watch?v=5I3E3-U-1jc; Hardball with Chris Matthews Transcript
12/8/15, MSNBC (Dec. 8, 2015), http://www.msnbc.com/transcripts/hardball/2015-12-08.

15

The same day, Mr. Trump also appeared on national television on ABC and, again, justified
his ban based on President Roosevelt’s internment of Japanese Americans. When asked whether
being compared to Hitler provided him with “any pause at all,” Mr. Trump responded: “No
because what I’m doing is no different than what F.D.R. did. F.D.R.’s solution for Germans,
Italians, Japanese, many years ago.”46 When Mr. Trump was asked if he was in favor of internment
camps, he further justified his intentions based on F.D.R.’s actions during World War II, stating:
“This was a president highly respected by all. He did the same thing.”47
Two days later, on December 10, 2015, Mr. Trump published a post on Twitter that linked
to an article referring to statements that Islam is a “very evil and wicked religion,” a “false
religion,” and advocating that Muslims should be banned, analogizing to the treatment of Japanese
during World War II. Mr. Trump’s post was titled: “Why Franklin Graham says Donald Trump
is right about stopping Muslim immigration.”48 That same day, Mr. Trump also published three
hateful tweets referring to Muslims as a “problem” and associating the Muslim religion with
terror.49
On March 9, 2016, on national television on CNN, Mr. Trump advocated that “Islam hates
us,” referring to America, and that there is “a tremendous hatred” in the Muslim religion itself.50

46

Miriam Hernandez, Trump Cites History to Defend Muslim Immigration Ban, ABC 7 (Dec. 9,
2015), http://abc7.com/politics/trump-cites-history-to-defend-muslim-immigrationban/1116396/.
47
Id.
48
Donald J. Trump, Twitter (Dec. 10, 2015),
https://twitter.com/realdonaldtrump/status/674934005725331456; see also Sarah Larimer, Why
Franklin Graham says Donald Trump is right about stopping Muslim immigration, Washington
Post (Dec. 10, 2015), https://www.washingtonpost.com/news/acts-of-faith/wp/2015/12/10/whyfranklin-graham-says-donald-trump-is-right-about-stopping-muslim-immigration/.
49
See supra fn. 4-5.
50
Transcript, Anderson Cooper 360 Degrees (Mar. 9, 2016)
http://www.cnn.com/TRANSCRIPTS/1603/09/acd.01.html; Theodore Schleifer, Donald Trump:

16

Mr. Trump denied that a distinction could be made between “radical Islam” and “Islam itself,”
claiming “it’s very hard to define.”51 Moreover, just as the Government attempted to justify the
detention of Japanese Americans in Korematsu, Mr. Trump attempted to justify banning all
Muslims on the basis that “you don’t know who is who.”52 Cf. Korematsu, 323 U.S. at 218-19
(explaining that “temporary exclusion [of all Japanese Americans] was rested by the military” on
the grounds that “it was impossible to bring about an immediate segregation of the disloyal from
the loyal”).
On June 13, 2016, at a press event in Manchester, New Hampshire—with specific reference
to the ban on Muslims he had long been advocating— Mr. Trump claimed that he would be able
to defend the ban based on the very argument the Government advances before this Court—that
“laws of the United States give the president powers to suspend entry into the country of any class
of persons . . . as he or she deems appropriate.”53
Two days later, on June 15, 2016 and on national television on CBS, Mr. Trump was asked
how he would implement his “temporary ban on Muslim integration” in light of apparent
opposition by the Senate. Mr. Trump responded that he would not back down from pursuing the
ban, again equating all Muslims with radical terrorism:
Mr. Trump:

You are going to have to watch and are going to have to see.
I have done a lot of things that nobody thought I could do.54

‘I think Islam hates us,’ CNN (Mar. 10, 2016), http://www.cnn.com/2016/03/09/politics/donaldtrump-islam-hates-us/.
51
Id.
52
Id.
53
Donald Trump Remarks in Manchester, New Hampshire, C-SPAN (June 13, 2016)
https://www.c-span.org/video/?410976-1/donald-trump-delivers-remarks-national-securitythreats.
54
Face the Nation transcripts June 5, 2016: Trump, CBS News (June 5, 2016)
http://www.cbsnews.com/news/face-the-nation-transcripts-june-5-2016-trump/.

17

John Dickerson:

But you’re not backing down on those promises, based on a
no from the Senate?

Mr. Trump:

No, I’m not backing down. We have to do something. We
have a problem in this country. We have a radical Islamic
terrorism problem in this country, and, by the way,
throughout the world, throughout the world. It’s a problem.
And it’s a temporary ban. I’m not talking permanent. It’s a
temporary ban. We have to find out what is going on.55

In July 2016, Mr. Trump made explicit that he would continue to pursue a ban on Muslims
from the United States, but that he would instead speak in terms of “territories” and “extreme
vetting” in order to please critics. In particular, on July 21, 2016, Mr. Trump delivered a speech
accepting the Republican nomination and stated, “[W]e must immediately suspend immigration
from any nation that has been compromised by terrorism until such time it’s proven that vetting
mechanisms have been put in place.”56 Three days later, when asked whether his language
indicated an intent to “pull back from” the “Muslim ban,” Mr. Trump responded:
I don’t think so. I actually don’t think it’s a rollback. In fact, you could say it’s an
expansion, I’m looking now at territory. People were so upset when I used the word
“Muslim”: “Oh, you can’t use the word ‘Muslim.’” Remember this. And I’m okay
with that, because I’m talking territory instead of Muslim. . . .
Now, we have a religious, you know, everybody wants to be protected. And that’s
great. And that’s the wonderful part of our Constitution. I view it differently. . . .
But you know what? I live with our Constitution. I love our Constitution. I cherish
our Constitution. We’re making it territorial. We have nations and we’ll come out,
I’m going to be coming out over the next few weeks with a number of the places.
And it’s very complex . . . here is what I want: Extreme vetting. Tough word.
Extreme vetting. Tough.57

55

Id.
Politico, Full text: Donald Trump 2016 RNC draft speech transcript (July 21, 2016)
http://www.politico.com/story/2016/07/full-transcript-donald-trump-nomination-acceptancespeech-at-rnc-225974.
57
Transcript, Meet the Press, NBC News (July 24, 2016), http://www.nbcnews.com/meet-thepress/meet-press-july-24-2016-n615706; Jenna Johnson, Donald Trump is expanding his Muslim
ban, not rolling it back, Washington Post (July 24, 2016),
56

18

The President advocated preventing Muslims from entering the United States on numerous
other occasions:


On September 18, 2015, at a town hall event in Rochester, New Hampshire, in response to
a questioner who stated, “We have a problem in this country; it’s called Muslims” and
asked, “When can we get rid of them?” Mr. Trump responded:
“We’re going to be looking at a lot of different things. You know, a lot of people
are saying that and a lot of people are saying that bad things are happening. We’re
going to be looking at that and many other things.”58



On October 12, 2015, Mr. Trump tweeted: “Muslims escorted into U.S. through Mexico.
Now arriving to Oklahoma and Kansas! Congress?”59



On January 2, 2016, Mr. Trump tweeted: “Hillary Clinton said that it is O.K. to ban
Muslims from Israel by building a WALL, but not O.K. to do so in the U.S. We must be
vigilant!”60



On March 22, 2016, Mr. Trump tweeted that Hillary Clinton was “incompetent” because
she would “let the Muslims flow in. No way!”61



On March 24, 2016, Mr. Trump tweeted that “[i]t is amazing how often I am right” about
“Muslims.”62

https://www.washingtonpost.com/news/post-politics/wp/2016/07/24/donald-trump-is-expandinghis-muslim-ban-not-rolling-it-back/.
58
Theodore Schleifer, Trump doesn’t challenge anti-Muslim questioner at event, CNN (Sept.
19, 2015), http://www.cnn.com/2015/09/17/politics/donald-trump-obama-muslim-newhampshire/.
59
Donald J. Trump, Twitter (Oct. 12, 2015),
https://twitter.com/realdonaldtrump/status/653774823483703297.
60
Donald J. Trump, Twitter (Jan. 2, 2016),
https://twitter.com/realdonaldtrump/status/683277309969694720.
61
Donald J. Trump, Twitter (Mar. 22, 2016),
https://twitter.com/realdonaldtrump/status/712473816614772736.
62
Donald J. Trump, Twitter (Mar. 24, 2016),
https://twitter.com/realdonaldtrump/status/713012045214531584.

19

4.

The President’s statements since being elected—and even after signing the
Executive Orders—make clear that this Executive action is motivated by
the same discriminatory animus.

The extensive history of animus by President Trump exposes his discriminatory goal to
obstruct Muslims from entering the United States while preventing American Muslims from seeing
their families in this country, as people of other faiths are able to do. While the President has
attempted to follow through on his promise to discriminate against Muslims using so-called neutral
language, even since the time that he has been elected and signed the Executive Orders, he and his
administration have made slip-ups exposing the Orders’ reprehensible origins.
On December 21, 2016, over a month after being elected President, Mr. Trump was asked
whether he would reevaluate his intention to ban people of the Muslim faith. He responded: “You
know my plans all along, and I’ve been proven to be right.”63
Then, immediately prior to signing of his initial Executive Order, President Trump read
the oblique title, looked up, and said: “We all know what that means.”64
Furthermore, on January 27, 2017, after signing the first Executive Order, President Trump
appeared on the Christian Broadcasting Network and made clear that the exceptions he had set
forth in the Order were intended to prioritize Christians over Muslims:
David Brody:

Persecuted Christians, we’ve talked about this, the refugees
overseas. The refugee program, or the refugee changes
you’re looking to make. As it relates to persecuted
Christians, do you see them as kind of a priority here?

Video, Trump: ‘You've known my plans’ on proposed Muslim ban, Washington Post (Dec. 21,
2016), https://www.washingtonpost.com/video/politics/trump-youve-known-my-plans-onproposed-muslim-ban/2016/12/21/8a7bba66-c7ba-11e6-acda-59924caa2450_video.html; Abby
Phillip and Abigail Hauslohner, Trump on the future of proposed Muslim ban, registry: ‘You
know my plans,’ Washington Post (Dec. 22, 2016), https://www.washingtonpost.com/news/postpolitics/wp/2016/12/21/trump-on-the-future-of-proposed-muslim-ban-registry-you-know-myplans/.
64
Trump Signs Executive Orders at Pentagon, ABC News (Jan. 27, 2017),
http://abcnews.go.com/Politics/video/trump-signs-executive-orders-pentagon-45099173.
63

20

President Trump:

Yes.

David Brody:

You do?

President Trump:

They’ve been horribly treated. Do you know if you were a
Christian in Syria it was impossible, at least very tough to
get into the United States? If you were a Muslim you could
come in, but if you were a Christian, it was almost
impossible and the reason that was so unfair, everybody was
persecuted in all fairness, but they were chopping off the
heads of everybody but more so the Christians. And I
thought it was very, very unfair. So we are going to help
them.65

On February 4, 2017, President Trump referred to the initial Executive Order as a “ban,”
publishing on Twitter: “Interesting that certain Middle-Eastern countries agree with the ban. They
know if certain people are allowed in it’s death & destruction!”66
After President Trump’s administration sought stays in various court proceedings to revise
its initial Executive Order, the President’s own senior advisor was explicit that the Second Order,
the subject matter of this lawsuit, was designed to achieve “the same basic policy outcome” and to
prevent further litigation through only “very technical issues that were brought up by the court.”67
On the same day that the President signed his second Order behind closed doors, the Trump

65

David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will Be
Given Priority As Refugees, CBN News (Jan. 27, 2017)
http://www1.cbn.com/thebrodyfile/archive/2017/01/27/brody-file-exclusive-president-trumpsays-persecuted-christians-will-be-given-priority-as-refugees.
66
Politico, Trump warns of ‘death & destruction’ if U.S. not allowed to limit immigration (Feb.
4, 2017), http://www.politico.com/story/2017/02/trump-travel-ban-judge-james-robart-234643;
Donald J. Trump, Twitter (Feb. 4, 2017),
https://twitter.com/realdonaldtrump/status/827865957750161408.
67
Fox News, Transcript, Miller: New order will be responsive to the judicial ruling (Feb. 21,
2017), http://www.foxnews.com/transcript/2017/02/21/miller-new-order-will-be-responsive-tojudicial-ruling-rep-ron-desantis/.

21

Campaign organization sent an email asking for support of the new Order, stating that its purpose
was to target “radical Islamic” terrorism.68

B.

Failing To Consider This Tremendous Record Of Animus Would Be A
Serious Abdication Of The Role Of The Judicial Branch.

The President’s second Executive Order, which targets people from six Muslim-majority
countries and attempts to stop those people from being able to see or obtain visas for their family
members, implements his vilification of Muslim people and his promise to ban them from the
United States in precisely the way he said he would do it. Discrimination against a protected class,
such as religion, on the basis of such overt animus is the most obvious and fundamental abuse of
government authority which the Equal Protection Clause exists to protect. Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977) (“When there is a proof that a
discriminatory purpose has been a motivating factor in the decision, . . . judicial deference is no
longer justified.”).
The Government has previously argued that it is beside the point whether the President is
using his power to oppress Muslims, claiming that the Executive has plenary power over matters
relating to immigration and national security. See Emergency Motion Under Circuit Rule 27-3 for
Administrative Stay and Motion for Stay Pending Appeal at 17, Washington v. Trump, No, 1735105 (9th Cir. Feb. 4, 2017), ECF No. 14. Not so. It is the Court’s duty to protect discrete and
insular minority communities, United States v. Carolene Products Co., 304 U.S. 144, 152 n.4
(1938), and prevent the exercise of Executive power to “harm a politically unpopular group,”

68

Matt Zapotosky, David Nakamura, and Abigail Hauslohner, Revised executive order bans
travelers from six Muslim-majority countries from getting new visas, Washington Post (Mar. 6,
2017), https://www.washingtonpost.com/world/national-security/new-executive-order-banstravelers-from-six-muslim-majority-countries-applying-for-visas/2017/03/06/3012a42a-027711e7-ad5b-d22680e18d10_story.html?utm_term=.40c03c0f3d7b.

22

United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (citation omitted). Moreover, the United
States Supreme Court has recognized that courts have a duty to enforce the Constitution even when
the Executive claims national security concerns. Boumediene v. Bush, 553 U.S. 723, 765 (2008)
(the President does not “have the power to switch the Constitution on or off at will” by invoking
national security); Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010) (“Our
precedents . . . make clear that national security and foreign relations do not warrant abdication of
the judicial role.”). Indeed, the importance of judicial intervention is at its highest in these
circumstances. See Hamdi v. Rumsfeld, 542 U.S. 507, 545 (2004) (Souter, J., concurring in part,
concurring in the judgment, and dissenting in part) (“In a government of separated powers,
deciding finally on what is a reasonable degree of guaranteed liberty whether in peace or war (or
some condition in between) is not well entrusted to the Executive Branch of Government, whose
particular responsibility is to maintain security.”).
The Government’s argument is not novel—it is the position advocated by the Government
in cases like Korematsu, now viewed as one of the most shameful decisions in American history.
See Michael Stokes Paulsen, The Constitution of Necessity, 79 Notre Dame L. Rev. 1257, 1259
(2004) (describing complete “judicial acquiescence or abdication” in the face of executive
discretion “has a name. That name is Korematsu”); Jamal Greene, The Anticanon, 125 Harv. L.
Rev. 379, 380 (2011) (writing that Korematsu “embodies a set of propositions that all legitimate
constitutional decisions must be prepared to refute”). The MacArthur Justice Center urges the
Court not to overlook the extensive record of animus present here and to avoid repeating the
terrible mistakes made in generations past.

23

III.

CONCLUSION

For the foregoing reasons, the MacArthur Justice Center respectfully requests that the
Court grant Plaintiffs’ Motion for a Temporary Restraining Order.

Dated: March 13, 2017

Respectfully submitted,

______________/s/________________
Amir H. Ali
signed by Veronica Nannis with permission of
Amir H. Ali)
Roderick & Solange MacArthur Justice Center
718 7th St. NW
Washington D.C. 20036
P: [phone]
F: [phone]
Email: [e-mail]
(Pro Hac Vice admission pending)

JOSEPH, GREENWALD & LAAKE, P.A.
/s/
Veronica Nannis, Bar No. 15679
[e-mail]
6404 Ivy Lane, Suite 400
Greenbelt, Maryland 20770
301.220.2200 (T) / 301.220.1214 (F)
Local Counsel for Amicus Roderick &
Solange MacArthur Justice Center

24

CERTIFICATE OF SERVICE

I hereby certify that on March 13, 2017, I electronically filed the foregoing using the
CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the CM/ECF system.

_________/s/_________________
Veronica Nannis