International Refugee Assistance Project et al v. Trump et al

Filing 72

Third Party MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs by Anti-Defamation League, Jewish Council for Public Affairs (Attachments: # 1 Memorandum in Support of Motion for Leave to File Amicus Brief, # 2 Exhibit 1 - Amicus Brief of Anti-Defamation League and Jewish Council for Public Affairs, # 3 Text of Proposed Order)(Mills, David)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
INTERNATIONAL REFUGEE
ASSISTANCE PROJECT, et al.,
Plaintiffs,
v.
DONALD TRUMP, et al.,

Civil Action No. TDC-17-00361
AMICUS CURIAE BRIEF OF
ANTI-DEFAMATION LEAGUE AND
JEWISH COUNCIL FOR PUBLIC
AFFAIRS

Defendants.

Of counsel:
John B. Harris
Jeremy Goldman
Caren Decter
Jessica Smith
Rayna Lopyan
Lily Landsman-Roos
Lakendra Barajas
FRANKFURT KURNIT KLEIN & SELZ,
P.C. 488 Madison Avenue
New York, NY 10022

COOLEY LLP
David E. Mills (Bar No. 16654)
Alyssa T. Saunders (pro hac vice motion
forthcoming)
Cooley LLP
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone: [phone]
Counsel for Anti-Defamation League and
Jewish Council for Public Affairs

Steven M. Freeman
Lauren A. Jones
Melissa Garlick
Michael Lieberman
ANTI-DEFAMATION LEAGUE
605 Third Avenue
New York, NY 10158
Doron F. Ezickson
ANTI-DEFAMATION LEAGUE
1100 Connecticut Avenue, Northwest, Suite
1020 Washington, DC 20036

Of counsel:
David Bohm
DANNA MCKINTRICK, P.C.
7701 Forsyth Blvd., Suite 800
St. Louis, MO 63105

Counsel for Anti-Defamation League

Counsel for Jewish Council for Public Affairs

TABLE OF CONTENTS
Page
STATEMENT OF INTEREST ....................................................................................................... 1
BACKGROUND ............................................................................................................................ 3
ARGUMENT .................................................................................................................................. 4
I.

America’s Aspirations as a Refuge for the Oppressed ........................................... 5

II.

America is at Its Best When It Honors Its Commitment to Its Core Values .......... 8

III.

When America Closed Its Doors and Allowed Its Core Values to be
Compromised, The Country Later Looked Back in Shame.................................. 12
A.

The St. Louis and Jewish Refugees During the Holocaust ....................... 13

B.

The Chinese Exclusion ............................................................................. 16

C.

The Japanese Internment........................................................................... 20

CONCLUSION ............................................................................................................................. 22
APPENDIX ................................................................................................................................... 24

i

TABLE OF AUTHORITIES
Page(s)
Cases
Aziz v. Trump,
No. 117CV116LMBTCB, 2017 WL 580855 (E.D. Va. Feb. 13, 2017) ..................................22
Washington v. Trump,
No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ........................................................22
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .......................................................................................................................4
WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave,
553 F.3d 292 (4th Cir. 2009) .....................................................................................................4
Statutes
50 U.S.C. § 4202. .....................................................................................................................20, 21
Chinese Exclusion Act, Ch. 126, 22 Stat. 58 (1882) (repealed 1943) .........................16, 17, 18, 19
Civil Liberties Act..........................................................................................................................21
Displaced Persons Act of 1948 ........................................................................................................9
Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943) ................................................................18
Immigration and Nationality Act of 1965 (H.R. 2580; Pub.L. 89–236, 79 Stat.
911, enacted June 30, 1968).....................................................................................................10
Refugee Act of 1980 (Public Law 96-212) ....................................................................................10
Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943) ..................................................18

ii

STATEMENT OF INTEREST
The Anti-Defamation League (“ADL”) and Jewish Council for Public Affairs (“JCPA”)
respectfully submit this brief as Amici Curiae in support of the relief sought by Plaintiffs
declaring invalid Section 5(d) of the Executive Order dated January 27, 2017, entitled
“Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Executive
Order”). Accordingly, ADL and JCPA ask this Court to grant Plaintiffs’ motion for a
preliminary injunction enjoining enforcement of Section 5(d) of the Executive Order. 1
Founded in 1913, ADL is a civil rights and human relations organization that seeks to
stop the defamation of the Jewish people, and to secure justice and fair treatment for all people.
Through its 26 regional offices throughout the United States, ADL provides materials, programs
and services to combat anti-Semitism and all forms of bigotry. Because of its history fighting
discrimination, including prejudice toward immigrants and religious minorities, ADL can
provide unique and important insights for the Court in addressing the Executive Order and in
considering the historical context of the Executive Order’s provisions limiting or barring entry of
refugees into the United States.
JCPA is the coordinating body of 16 national Jewish organizations and 125 local Jewish
federations and community relations councils. Founded in 1944, JCPA is dedicated to
safeguarding the rights of Jews throughout the world; upholding the safety and security of the
State of Israel; and protecting, preserving, and promoting a just, democratic, and pluralistic
society. JCPA recognizes that the United States was founded by individuals who came here in
search of religious and political freedom and economic opportunity, and that our country is based
1

Amici Curiae states that no counsel for any party authored this brief in whole or in part and
no entity or person, aside from Amici and their counsel, made any monetary contribution toward
the preparation or submission of this brief.

upon the ethical imperative to “welcome the stranger.” JCPA’s policies make every effort to
institute uniform, compassionate and humane protocols and criteria to process refugee and
asylum claims. JCPA works to ensure that those fleeing persecution are protected, and that the
United States is accessible and welcoming toward those who wish to come here to work and live.
Since 1990, JCPA has supported an open admissions policy that maintains the pluralistic
character of American society and does not prefer one national group at the expense of another.
JCPA opposes the use of rigid caps on entry to the United States. Because of its work in this
field, JCPA also can offer unique and helpful information to this Court related to the harmful
impact of the Executive Order on individuals fleeing persecution.

2

BACKGROUND
The United States is a nation dedicated to the ideals of equality, liberty and justice.
(See infra Section I.). Adhering to these principles under changing domestic and international
circumstances often is a work in progress. Throughout the history of the United States, and
frequently with respect to immigration, our ideals have been tested. Sometimes the nation rises
to meet the challenge, upholding the values that make America exceptional. (See infra Section
II.) At other times, when prejudice and fear predominate over reason and compassion, we falter,
often with devastating consequences. (See infra Section III.) We turned our backs on the St.
Louis, a ship with nearly 1,000 Jews fleeing Nazi Germany, condemning hundreds of them to
their deaths; we passed laws that overtly excluded and discriminated against the Chinese; and we
rounded up more than 100,000 Japanese Americans and interned them in prison camps in the
1940s. In each instance, when we later realized that we had strayed from our principles, we were
left to apologize to the people who suffered, or to their descendants, or to the memory of those
who perished without descendants, in each case promising to learn from our mistakes and not to
repeat them.
ADL was created at a time when fear and prejudice against Jews were so great that a
Jewish man, Leo Frank, was convicted of murder after a trial marked by overt anti-Semitism and
then dragged from his prison cell and lynched in 1915. 2 ADL regularly confronts discrimination

2

See Wendell Rawls, Jr., After 69 Years of Silence, Lynching Victim is Cleared, N.Y. TIMES,
Mar. 8, 1982. After the lynching, armed mobs ran through the streets of Atlanta, forcing Jewish
businesses to shutter their doors and about half of Georgia’s Jewish population to flee. Sixty
years later, the State of Georgia posthumously pardoned Frank on the grounds that the State
failed to protect him while he was in its custody. See STATE BOARD OF PARDONS AND PAROLES,
Pardon of Leo Frank (Mar. 11, 1986), http://www.gpb.org/files/georgiastories/nsouthfrank176.jpg.
See also Leonard Dinnerstein, Leo Frank Case, NEW GEORGIA ENCYCLOPEDIA,

3

against perceived outsiders, foreigners and strangers. As an organization founded by
immigrants, as an organization sworn to protect the interests of religious and ethnic minorities,
ADL believes that when our nation’s values are threatened, we are duty-bound to look back at
the founding principles that propelled this nation of immigrants – in the hope that future
generations can celebrate and maintain our resolve. Furthermore, JCPA believes that in
accordance with our core American principles of equality, fairness and due process of law, those
entering the country legally with the intention to settle here permanently should not be subject to
a delayed process as a result of any administrative procedures or legislative changes.
ARGUMENT
As the U.S. Supreme Court has held, a petitioner seeking a preliminary injunction must
demonstrate that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm
in the absence of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008). 3 With this brief, ADL and JCPA seek to provide important insight regarding how
Section 5(d) of the Executive Order, absent injunctive relief, will almost certainly cause
irreparable harm, similar to other harms for which the United States has later apologized when it
failed to live up to its values and the promise embodied in the Constitution. ADL and JCPA also

http://www.georgiaencyclopedia.org/articles/history-archaeology/leo-frank-case (last visited Feb.
7 2017).
3

See also WV Ass’n of Club Owners & Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298
(4th Cir. 2009) (“In order to receive a preliminary injunction, a plaintiff must establish that he is
likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the
public interest.”) (internal quotation omitted).

4

seek to demonstrate that the public interest lies squarely in support of injunctive relief, as
America has always been at its best when it opens its doors to refugees and immigrants.
I.

America’s Aspirations as a Refuge for the Oppressed
The promise of America has been manifest since before the American Revolution. John

Winthrop, while still on his transatlantic voyage to the New World, admonished the future
colonists of Massachusetts always to remember that their new community would be “as a city
upon a hill,” with the entire world watching. 4 In fulfilling this vision, the country welcomed in
its early years those disfavored and persecuted in their homelands based on their religious
beliefs, including the Pilgrims, the Puritans and the Huguenots. Since then, our nation’s wisest
leaders have been guided by Winthrop’s inspiring vision and have strived toward a more
inclusive democracy.
The birth of the United States came in part because the Founders sought to cast off the
shackles of Europe’s endless religious wars and sectarian conflict in order to form a more perfect
union. In beseeching the country to separate from England, Thomas Paine recognized that
Europe was “too thickly planted with kingdoms to be long at peace” and believed the discovery
of America had a divine purpose: “to open a sanctuary to the persecuted in future years, when
home should afford neither friendship nor safety.” 5 Seven months later, the Declaration of
Independence enunciated the “self-evident truths” that “all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness.” Less quoted from the Declaration is the Founders’ burning grievance
that the English King had restricted free immigration, having “endeavoured to prevent the
4

John Winthrop, A Model of Christian Charity (1630).

5

Thomas Paine, Common Sense (Jan. 10, 1776).

5

population of these States; for that reason obstructing the Laws for the Naturalization of
Foreigners [and] refusing to pass others to encourage their migrations hither.” 6
After the United States won its independence, it faced the challenge of designing laws
that embodied the enlightened vision of the new nation. In 1785, James Madison published
“Memorial and Remonstrance Against Religious Assessments” in opposition to a bill proposed
to Virginia’s General Assembly that would have levied a modest tax to support Christian
education. 7 Madison warned that any measure, no matter how slight, that gave a preference to
one religion over another would constitute “a dangerous abuse of power” and would betray the
vision of America as a shining city upon a hill:
Because the proposed establishment is a departure from that generous policy,
which, offering an Asylum to the persecuted and oppressed of every Nation and
Religion, promised a lustre to our country, and an accession to the number of its
citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of
holding forth an Asylum to the persecuted, it is itself a signal of persecution. . . .
Distant as it may be in its present form from the Inquisition, it differs from it only
in degree. The one is the first step, the other the last in the career of intolerance.
The magnanimous sufferer under this cruel scourge in foreign Regions, must view
the Bill as a Beacon on our Coast, warning him to seek some other haven, where
liberty and philanthrophy (sic) in their due extent, may offer a more certain repose
from his Troubles. 8
Virginia recognized Madison’s wisdom. It rejected the establishment bill and instead
adopted Thomas Jefferson’s “Statute for Religious Freedom,” which firmly separated church
from state and enshrined the principles of religious liberty for all. 9 When Madison went to the

6

Declaration of Independence (July 4, 1776).

7

James Madison, Memorial and Remonstrance against Religious Assessments ¶ 9 (Jun. 20,
1785).
8

Id. (emphasis added).

9

Virginia’s Statute for Religious Freedom (Jan. 16, 1786)

6

Constitutional Convention in 1787, he fought for Jefferson’s view to become the law of the land,
and it became a bedrock of the rights confirmed by the First Amendment.
Although the makeup of the United States was overwhelmingly Christian at its birth, our
Founders were clear that the nation’s new laws prohibiting religious discrimination extended to
people of all faiths and backgrounds. When Jefferson later reflected on his Statute for Religious
Freedom, he extolled the broad application of the law, which was evidence that the legislators
“meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian
and the Mahometan [Muslim], the Hindoo [Hindu], and every Infidel of every denomination.” 10
The American values of accepting people into this country regardless of their faith, race
or nationality have been celebrated by our leaders. In 1855, Abraham Lincoln confronted the
burgeoning anti-immigrant “Know Nothing” movement, soundly rejecting the Know Nothings’
vision of an America in which “all men are created equal, except negroes, and foreigners, and
Catholics.” 11 He said of the movement: “When it comes to this I should prefer emigrating to
some country where they make no pretence of loving liberty — to Russia, for instance, where
despotism can be taken pure. . . .” 12
The vision of the “shining city on the hill” has also inspired poets. In 1856, Walt
Whitman wrote: “These States are the amplest poem, here is not merely a nation but a teeming
Nation of nations.” 13 Emma Lazarus’ immortal sonnet, enshrined on the pedestal of the Statue
of Liberty, urges “ancient hands” to give America “your tired, your poor, your huddled masses
10

Thomas Jefferson, Autobiography, Works 1:71 (1821).

11

Abraham Lincoln, Letter to Joshua F. Speed (Aug. 24, 1855).

12

Id.

13

Walt Whitman, Preface to Leaves of Grass (1855).

7

yearning to breathe free. . . . Send these, the homeless, tempest-tost to me, I lift my lamp beside
the golden door!” 14
These values have endured to the modern day. In his 1959 book, A Nation of
Immigrants, future President John F. Kennedy studied the history of immigration in this country,
both in terms of those subject to religious persecution and those facing other overpowering
hardship. He wrote: “America has always been a refuge from tyranny. As a nation conceived in
liberty, it has held out to the world the promise of respect for the rights of man.” 15
On the eve of his election as President in 1980, Ronald Reagan also took inspiration from
Winthrop’s vision of America:
These visitors to that city on the Potomac do not come as white or black, red or
yellow; they are not Jews or Christians; conservatives or liberals; or Democrats or
Republicans. They are Americans awed by what has gone before, proud of what
for them is still . . . a shining city on a hill. 16
II.

America is at Its Best When It Honors Its Commitment to Its Core Values
There are numerous examples where the United States has met its aspirations as

Winthrop’s “shining city on the hill,” opening itself to “anyone with the will and the heart to get
here.” 17 At its best, the United States has been a beacon of hope for refugees from war-torn
countries, victims of religious persecution, natural disasters or other emergencies, fulfilling what
President Kennedy described in A Nation of Immigrants as the “natural humanitarian impulses of
the American people which is in keeping with our traditions of shelter to the homeless and refuge

14

Emma Lazarus, The New Colossus (1883).

15

John F. Kennedy, A Nation of Immigrants 7 (Harper Perennial, January 2008).

16

Ronald Reagan, Election Eve Address, (Nov. 3, 1980).

17

Ronald Reagan, Farewell Address to the Nation, (Jan. 11, 1989).

8

for the oppressed.” 18 Indeed, many of these refugees have contributed immeasurably to the
fabric of America.
With the Truman Directive in 1945, and the Displaced Persons Act of 1948, the United
States – for the first time since its founding – began explicitly to focus on its identity as a
sanctuary for those fleeing persecution, as the first Americans had done hundreds of years
earlier. 19 President Truman led the assistance and reconstruction effort to resettle hundreds of
thousands of European Jews and other Europeans displaced from their home countries who could
not return in the aftermath of World War II. 20
These new laws gave truth to Thomas Paine’s prophecy that the United States would
“open a sanctuary to the persecuted in future years, when home should afford neither friendship
nor safety.” The refugees welcomed to the United States during or after World War II have
made immeasurable contributions to politics, science, literature, music, art, and social and
scientific studies. Refugees from that period include Madeleine Albright, Hannah Arendt, Bela
Bartok, Marc Chagall, Marlene Dietrich, Albert Einstein, Enrico Fermi, Henry Kissinger,
Raphael Lemkin, Thomas Mann, Vladimir Nabokov, Claude Levi-Strauss, Dr. Ruth Westheimer,
and Billy Wilder. American culture and science stand on the shoulders of many of these
contributions.

18

Kennedy, supra note 15 at 46.

19

David W. Haines, “Learning From our Past: The Refugee Experience in the United States,”
AMERICAN IMMIGRATION COUNCIL,
http://www.americanimmigrationcouncil.org/research/refugee-experience-united-states (last
visited Feb. 7, 2017).
20

Id. In so doing, as set forth below, the United States began the process of making amends for
the tragic consequences of its turning away Jewish refugees during World War II, dooming many
of them to death or excruciating years in concentration camps.

9

With the onset of the Cold War, Congress began assisting groups of refugees from
Communist regimes including those seeking freedom from the Soviet Union, Cuba, Hungary,
Poland, and Yugoslavia, as well as those fleeing Southeast Asia after the Vietnam War. The
openness to asylum seekers reflected in these efforts also demonstrated a growing recognition
that many refugees have significant education, skills, strong family structures and commitment to
hard work and success that make them ideal new citizens. 21 Examples of notable refugees that
came to the United States from this period include: Sergey Brin, Joseph Brodsky, Gloria Estefan,
Milos Forman, Wyclef Jean, Miriam Makeba, Thomas Peterffy, Regina Spektor and David Tran.
In the wake of the publication of A Nation of Immigrants, Congress enacted the
Immigration and Nationality Act of 1965, which allowed increased numbers of people to migrate
to the United States from South America, Asia, Africa, the Middle East, and Southern and
Eastern Europe, abolishing the previous quotas that had been set based on national origin. In
1968, the United States was one of the first countries to sign the United Nations Protocol
Relating to the Status of Refugees, a key treaty in international refugee law. The 1974 JacksonVanik Amendment ultimately permitted approximately 500,000 Jews, evangelical Christians and
Catholics to escape religious persecution in the former Soviet Union by coming to the United
States. And in 1980 Congress signed the Refugee Act which standardized the resettlement
process and services for all refugees admitted to the United States.
Since the 1980s, the United States has resettled refugees from Darfur fleeing genocide
and violence; refugees from Bhutan forced out of their country; and Syrian, Iraqi and Afghan
refugees displaced by war. In addition, the U.S. has facilitated the naturalization of Hmong

21

Haines, supra note 19.

10

veteran refugees who served in Laos in support of U.S. forces and during the Vietnam War; 22
assisted the children of Vietnamese re-education camp survivors through the “McCain
Amendment;” assisted former Soviet and Indochinese nationals with a credible fear of
persecution through the “Lautenberg Amendment;” and assisted Iranian religious minorities
through the “Specter Amendment.” 23 Since 1975, the US has settled over 3 million refugees. 24
It should come as no surprise, then, that more than 40 percent of Fortune 500 companies
were founded by recent immigrants or their children (even though such immigrants account for
roughly 10.5 percent of the U.S. population); or that the revenue generated by these companies is
greater than the GDP of every country in the world outside the U.S. except China and Japan; or
that successful global companies founded by American immigrants and refugees or their children
span all sectors of the economy, including some of the most valuable brands in the world (Apple,
Google, eBay, AT&T, General Electric, IBM, McDonald’s). 25 At least 18 percent of all
scientists living in the U.S., of which there are millions, are immigrants or refugees, 26 and over

22

William J. Clinton, “Statement on Signing the Hmong Veterans Naturalization Act of 2000”
(May 26, 2000).
23

Andorra Bruno, CONG. RESEARCH SERV., RL31269, “Refugee Admissions and Resettlement
Policy” (Nov. 30, 2016).
24

Ruth Igielnick and Jens Manuel Krogstad, “Where Refugees to the U.S. Come From,” PEW
RESEARCH CENTER, (Feb. 3, 2017), http://www.pewresearch.org/fact-tank/2017/02/03/whererefugees-to-the-u-s-come-from/.
25

PARTNERSHIP FOR THE NEW AMERICAN ECONOMY, “The ‘New American’ Fortune 500,”
(June 2011), http://www.renewoureconomy.org/sites/all/themes/pnae/img/new-americanfortune-500-june-2011.pdf.
26

Flora Lan, Katherine Hale, and Emilda Rivers, “Immigrants’ Growing Presence in the U.S.
Science and Engineering Workforce: Education and Employment Characteristics in 2013,”
NATIONAL CENTER FOR SCIENCE AND ENGINEERING STATISTICS (Sept. 2015),
https://www.nsf.gov/statistics/2015/nsf15328/nsf15328.pdf.

11

25% of all physicians and surgeons in the United States are born abroad. 27 And as of 2016,
roughly 2 million veterans of the U.S. Armed Forces living in the U.S. — of a total 18.8 million
— are refugees/immigrants or have refugee/immigrant parents. 28 As President Kennedy
observed, “[t]here is no part of our nation that has not been touched by our immigrant
background.” 29 The Executive Order betrays that history, and would exclude the talents, ideas
and work ethic of immigrants and refugees who, just as with generations past, would help to
build and protect our nation and strengthen our economy.
III.

When America Closed Its Doors and Allowed Its Core Values to be Compromised,
The Country Later Looked Back in Shame
In sharp contrast to the times when the United States has shown its “natural humanitarian

impulses,” at other times the country has closed itself off and succumbed to fear or bigotry, with
tragic consequences. Sometimes the victims of this xenophobia and prejudice were Jews (the St.
Louis tragedy and the denial of visas) or other religious minorities, sometimes they were from
nations that were regarded as undesirable (the Chinese exclusion) and sometimes they were
groups the government assumed to be disloyal (the Japanese internment during World War II).
In each case, the United States apologized years later, after it was too late.

27

Nicole Fisher, “25% of Physicians Are Born Outside the U.S. Can Immigration Reform Fix
The Shortage?” FORBES: PHARMA & HEALTHCARE (Jul. 12, 2016),
http://www.forbes.com/sites/nicolefisher/2016/07/12/25-of-docs-are-born-outside-of-the-u-scan-immigration-reform-solve-our-doc-shortage/#446de1bc702b.
28

Jie Song and Jeanne Batalova, “Immigrant Veterans in the United States,” MIGRATION
POLICY INSTITUTE (Oct. 13, 2016), http://www.migrationpolicy.org/article/immigrant-veteransunited-states.
29

Kennedy, supra note 15, at 3.

12

A.

The St. Louis and Jewish Refugees During the Holocaust

The tragedy of the vessel St. Louis illustrates the devastating consequences that can result
when the United States turns its back on refugees in need. In May 1939, on the eve of World
War II and after Kristallnacht, 30 the St. Louis left Hamburg, Germany, carrying 937 passengers,
nearly all of whom were Jews fleeing Nazi persecution. The ship was headed to Havana, Cuba
with the hope of having its passengers granted sanctuary in the United States.
Prior to the ship’s departure, most of the Jewish passengers had obtained valid paperwork
permitting their entry to Cuba and had also applied for U.S. visas, planning to stay in Cuba only
until their entry to the U.S. was approved. By the time the St. Louis arrived in Cuba on May 27,
1939, however, the Cuban president had invalidated most of the passengers’ travel certificates. 31
While United States-based Jewish organizations negotiated with Cuban officials to persuade
them to admit the other passengers, the United States refused to formally intercede on the
refugees’ behalf or publicly pressure the Cuban government to admit them. 32
After negotiations with Cuba failed, the St. Louis headed towards Miami in June 1939,
coming within sight of the Florida coastline. Despite pleas from passengers on board, President
Roosevelt and the State Department refused to accept the Jewish refugees into the United
30

Kristallnacht, or the “Night of Broken Glass,” occurred in November 1938, when almost 100
Jews were murdered, countless more were attacked, and as many as 30,000 Jewish men were
arrested and sent to concentration camps. See THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES
HOLOCAUST MEMORIAL MUSEUM, “Kristallnacht,” https://www.ushmm.org/wlc/en/
article.php?ModuleId=10005201. (Last visited Feb. 7, 2017).
31

THE HOLOCAUST ENCYCLOPEDIA, UNITED STATES HOLOCAUST MEMORIAL MUSEUM,
“Voyage of the St. Louis,” https://www.ushmm.org/wlc/en/article.php?ModuleId=10005267.
(Last visited Feb. 7, 2017).

32

Id. See also Dara Lind, How America’s Rejection of Jews Fleeing Nazi Germany Haunts
Our Refugee Policy Today, VOX (Jan. 27, 2017, 8:12 AM). http://www.vox.com/policy-andpolitics/2017/1/27/14412082/refugees-history-holocaust.

13

States, 33 reflecting anti-immigrant and anti-Semitic sentiments prevailing at the time. 34 A State
Department telegram to a passenger on the ship explained the government’s position that the
passengers must “await their turns on the [visa] waiting list and qualify for and obtain
immigration visas before they may be admissible into the United States.” 35
Ultimately, the United States refused entry to the passengers of the St Louis, forcing it to
sail back to Europe. 36 Historians estimate that more than a quarter of the St. Louis passengers –
254 people – were killed in the Holocaust, including a number at Auschwitz, after being refused
entry to the U.S. 37
In April 2009, at a commemoration for Yom HaShoah (Holocaust Remembrance Day)
held at the U.S. Capitol before the President and members of Congress, Fred S. Zeidman,
chairman of the U.S. Holocaust Memorial Council, recalled the “infamous ship called the St.

33

Kristine Guerra, What the U.S. Learned from Turning Away Refugees who Fled the Nazis,
THE WASHINGTON POST (Jan. 29, 2017) https://www.washingtonpost.com/news/postnation/wp/2017/01/29/what-the-u-s-learned-from-turning-away-refugees-who-fled-thenazis/?utm_term=.e91085b6c047.
34

A Gallup poll taken in January 1939 asked Americans if the government should allow 10,000
refugee children, mostly Jewish, from Germany to be taken care of in American homes; 61
percent were opposed. See Ishaan Tharoor, What Americans Thought of Jewish Refugees on the
Eve of World War II, THE WASHINGTON POST (Nov. 17, 2015) https://www.washingtonpost.com/
news/worldviews/wp/2015/11/17/what-americans-thought-of-jewish-refugees-on-the-eve-ofworld-war-ii/?utm_term=.a67eb4b68817.
35

See “Voyage of the St. Louis,” supra note 31.

36

Recent images of refugee-seekers, having disembarked at U.S. airports after days-long
journeys, being immediately sent back to the countries from which they had fled, unavoidably
call to mind the passengers of the St. Louis who were turned away within sight of U.S. sanctuary.
See Appendix.
37

See “Voyage of the St. Louis,” supra note 31.

14

Louis” and reminded those gathered of the “shameful result” and the consequences of inaction. 38
Three years later, the United States government issued a formal apology for the country’s refusal
to provide refuge for the Jewish passengers aboard the St. Louis. 39 Addressing the 14 surviving
passengers, a State Department official stated: “To the survivors of the MS St. Louis, on behalf
of the president and Secretary of State, I am honored to say what we should’ve said so long ago,
welcome.” 40 (Archival photographs from the St. Louis are contained in the Appendix).

The passengers of the St. Louis were not the only victims of America’s refusal to grant
visas to Jews and other minorities during the Holocaust. Before the St. Louis sailed, Congress
rejected a bill that would have allowed 20,000 imperiled German children to settle in this
country. Opponents took an “America-First” approach to reject the proposal, arguing that
America should first focus on its own needy and homeless citizens. The wife of the United
States immigration commissioner, Laura Delano Houghteling, refused to be swayed by the
children’s vulnerability, testifying that “20,000 charming children would all too soon grow into
20,000 ugly adults.” 41 Countless Jews denied visas to enter the United States ultimately perished
in Nazi concentration camps, including the Dutch teenager Anne Frank. 42 Historian Richard

38

AMERICAN JEWISH JOINT DISTRIBUTION COMMITTEE ARCHIVES, “Fred S. Zeidman’s
Remarks, Days of Remembrance Commemoration” (Apr. 23, 2009),
http://archives.jdc.org/assets/documents/stlouis_fredszeidmanremarks2009.pdf.
39

Kamrel Eppinger, State Department apologizes to Jewish refugees, SCRIPPS HOWARD
FOUNDATION WIRE (Sep. 26, 2012) http://www.shfwire.com/state-department-apologizes-jewishrefugees/.
40

Id.

41

See Lind, supra note 32.

42

In 1938, Otto Frank first applied for immigrant visas for himself, his wife Edith, and their
two daughters Margot and Anne. See Richard Breitman, Blocked by National Security Fears?:
The Frank Family and Shifts in American Refugee Policy, 1938-1941, YIVO INSTITUTE FOR

15

Brietman reminds us that if not for an immigration policy steeped in fear, an elderly Anne Frank
could still be living in the United States today. 43 Instead she was murdered at Bergen-Belsen,
made immortal by the teenage diary that survived her. The Executive Order – signed on
Holocaust Remembrance Day – ignores the tragic lessons our Nation learned from turning our
back on Jewish refugees during World War II, and would again close America’s doors to some
of the world’s most vulnerable refugees and immigrants.
B.

The Chinese Exclusion

In the late 1860s and early 1870s, Chinese immigrants, including both skilled and
unskilled laborers, enjoyed easy passage to this country under the terms of a treaty between the
United States and China. 44 Even with the treaty’s relaxed standards, annual Chinese
immigration never exceeded 40,000 people, and in 1890 there were only 107,000 Chinese
nationals living in the United States. 45 Nevertheless, hostility towards the Chinese escalated
within certain portions of the American public, who blamed wage decreases and other economic

JEWISH RESEARCH (Feb. 14, 2007), https://www.yivo.org/cimages/richardbreitman-ottofrankwhitepaper.pdf?c=. The family was placed on a waiting list, which by 1939 had grown to
include 300,000 individuals. Id. at 2. Despite having multiple people willing to provide
affidavits for the Frank family, Otto was met with additional regulations, including proof of
booked transportation to the U.S., verification that no close relatives remained in German
territories, and the specter of the German refugee quota. Id. at 5. Ultimately, the Frank family
was denied refugee status and Anne, along with her mother and sister, all died in the
concentration camps.
43

Elahe Izadi, Anne Frank and her family were also denied entry as refugees to the U.S.,
WASHINGTON POST, (Nov. 24, 2015), https://www.washingtonpost.com/news/worldviews/wp/
2015/11/24/anne-frank-and-her-family-were-also-denied-entry-as-refugees-to-the-us/?utm_term=.6e028f50e0dd.
44

See H.R. Res. 683, 114th Cong. (as passed by House, June 18, 2012). See also Kennedy,
supra note 15 at 40.

45

Kennedy, supra note 15 at 40.

16

difficulties on Chinese laborers. 46 Although Government leaders initially resisted constituent
pressure to stop Chinese immigration, 47 a “campaign of organized violence against Chinese
communities took form, and the hysteria led to public pressure too violent to be resisted.” 48
The Chinese Exclusion Act of 1882, signed into law by President Arthur, was the “first
federal law ever passed excluding a group of immigrants solely on the basis of race or
nationality.” 49 The thrust of the Chinese Exclusion Act was that it barred Chinese laborers from
entering the United States for 10 years, 50 but it also put in place other discriminatory systems,
including a registry for all Chinese (including non-laborers) who were then legally present in the
United States. 51 Additionally, Chinese laborers already in the country would have to obtain a
“certificate” to return to the United States, if they ever wanted to leave the country. 52 The Act
also explicitly prohibited all state and federal courts from naturalizing people of Chinese origin,
regardless of whether they were legally in this country. 53 These sweeping restrictions were
explained only by this statement in the law’s preamble: “in the opinion of the Government of the

46

HARVARD UNIVERSITY LIBRARY OPEN COLLECTIONS PROGRAM, Chinese Exclusion Act
(1882), http://ocp.hul.harvard.edu/immigration/exclusion.html (last visited Feb. 7, 2017).
47

President Arthur initially vetoed the bill, which he viewed as incompatible with the
Burlingame Treaty. See Chester A. Arthur, “Veto of the Chinese Exclusion Act” (Apr. 4, 1882).
48

Kennedy, supra note 15 at 41.

49

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

50

Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943) (hereinafter “Chinese
Exclusion Act.”).
51

Id.

52

Id. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014)

53

Chinese Exclusion Act, § 14. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

17

United States the coming of Chinese laborers to this country endangers the good order of certain
localities within the territory thereof[.]” 54
The Chinese Exclusion Act was followed by a series of other laws designed to exclude
the Chinese from the United States, both physically and politically. The Scott Act of 1888 55
precluded Chinese laborers from leaving and reentering the United States entirely and cancelled
all previously issued “certificates” as referenced in the Exclusion Act. 56 This action prevented
the return of approximately 20,000 Chinese laborers who were abroad and had lawfully-obtained
certificates permitting them to re-enter. 57 It also froze the migration of an additional 600
Chinese individuals who were en route to the United States at the time of its enactment. 58 When
the Chinese Exclusion Act was set to expire in 1892, Congress passed the Geary Act, 59 which
extended Chinese exclusion for another ten years and introduced even more restrictions. 60 It was
not until 1943 that Congress finally began repealing certain – and eventually all – of these
discriminatory laws. 61
The repeal of the Chinese exclusionary laws was a first step in re-establishing the ideals
of the Founders. In October 2011, the United States Senate finally issued an apology for the
54

Chinese Exclusion Act, preamble.

55

The Scott Act (1888), ch. 1064, 22 Stat. 504 (1888) (repealed 1943).

56

S. Res. 201, 112th Cong. (as passed by Senate, Oct. 6, 2011). See also H.R. Res. 683, 114th
Cong.
57

S. Res. 201, 112th Cong.

58

Id.

59

The Geary Act, ch. 60, 27 Stat. 525 (1892) (repealed 1943).

60

S. Res. 201, 112th Cong.

61

Id.

18

Chinese Exclusion Act and other laws. 62 A similar report was announced by the United States
House of Representatives 63 and, later, by the California State Legislature. 64 In each instance, the
government noted that the Chinese Exclusion Act and its companion laws were and remain
“incompatible with the basic founding principles recognized in the Declaration of Independence
that all persons are created equal[.]” 65 The announcements expressed a commitment to
“diversity in the United States that contributes to the country’s economic, cultural, technological,
academic, and political growth[.]” 66
In its apology, the California legislature observed:
The Chinese Exclusion Act set the precedent for racist foreign and national policy
that led to broader exclusion laws and fostered an environment of racism that
quickly led to the Jim Crow laws of the 1880s, and further segregation legislation
that would tear our nation apart through most of the 20th Century[.] 67
Simply put, our nation’s leaders recognized that racism breeds racism, and any governmental
policies that conflict with the founding ideals of this country cannot be allowed to stand. The
Executive Order, and Section 5(d) in particular, is such a policy.

62

Id.

63

H.R. Res. 683, 114th Cong.

64

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

65

S. Res. 201, 112th Cong. See also S. J. Res. 23, Res. Ch. 134 (Ca. 2014) (pointing out that,
“[p]aradoxically, the very same year that the Chinese Exclusion Act was passed, financing
abroad was completed for the Statute of Liberty. . . . While the Statute of Liberty was being built,
legislators were contradicting those very ideals by discriminating against Chinese immigrants
and lobbying Congress to do the same”).

66

S. J. Res. 23, Res. Ch. 134 (Ca. 2014).

67

Id.

19

C.

The Japanese Internment

The internment of Japanese-Americans was authorized by Executive Order 9066, 68 which
President Roosevelt issued in early 1942, 10 weeks after the Pearl Harbor attack. Executive
Order 9066 gave to the Secretary of War and the military commanders to whom he delegated
authority, the power to exclude any and all persons, citizens and aliens from designated areas in
order to provide security against sabotage and espionage. 69 The Order makes no reference to the
Japanese, just as the current Executive Order does not reference Muslims. However, within a
week of the issuance of the order, Lt. General John L. DeWitt issued the first of 108 relocation
orders resulting in the forcible evacuation of approximately 120,000 Japanese Americans,
including 70,000 citizens, to internment camps in desolate areas of the United States for the
duration of World War II. 70
The justification for Executive Order 9066 was “military necessity.” 71 However,
Congress has since acknowledged that “these actions were carried out without adequate security
reasons and . . . were motivated largely by racial prejudice, wartime hysteria, and a failure of
political leadership.” 72 This conclusion was bolstered by the fact that no effort was made to
68

7 Fed. Reg. 1407 (Feb. 19, 1942).

69

Id.

70

See Roger Daniels, Concentration Camps USA: Japanese Americans and World War II 33,
104 (1972).
71

U.S. Comm’n on Wartime Relocation and Internment of Civilians, report: Personal Justice
Denied at 6-8 (96th Cong.) (1982).
72

50 U.S.C. § 4202. Anti-Japanese bias was palpable: polls taken in 1944 indicated that more
than 60 percent of Americans thought that whites should be prioritized in hiring decisions over
Japanese Americans. Stephen White, “Many Americans Support Trump’s Immigration Order;
Many Americans Backed Japanese Internment Camps, Too,” THE WASHINGTON POST (Feb. 2,
2017).

20

invoke Executive Order 9066 to authorize internment of German-Americans and/or ItalianAmericans. 73
In 1976, President Gerald Ford issued a proclamation acknowledging that “not only was
that evacuation wrong, but Japanese Americans were and are loyal Americans.” In 1982, the
Commission on Wartime Relocation and Interment of Civilians issued a report entitled,
“Personal Justice Denied.” The report set the stage for the historic moment in 1988 when
President Ronald Reagan signed the Civil Liberties Act, which offered a formal apology and
reparations for the “grave injustice” of evacuating, relocating and interning tens of thousands of
Japanese Americans during the war. 74 President Reagan, in his remarks on signing the Act,
made clear that the internment of Japanese Americans was a “grave wrong.” 75 Congress too
acknowledged that this measure – carried out under the false banner of “national security” –
amounted to a “fundamental violation[] of the basic civil liberties and constitutional rights of []
individuals of Japanese ancestry” and caused “enormous damages, both material and intangible,
. . . which resulted in significant human suffering[.]” 76
Like Executive Order 9066, the Executive Order here invokes national security as its
justification. Leaving aside the legal standards regarding how much deference such an
invocation deserves, the history of the Japanese internment counsels that we must take an
especially hard look at actions that undermine core values and freedoms in the name of national
security. In this regard, we note the statements by other federal courts that there is “no evidence
73

See U.S. Comm’n on Wartime Relocation and Internment of Civilians, supra note 71 at 3.

74

See 50 U.S.C. § 4201 et seq.

75

Ronald Reagan, Remarks on Signing the Bill Providing Restitution for the Wartime
Internment of Japanese-American Civilians (Aug. 10, 1988).
76

50 U.S.C. § 4202.

21

that any alien from any of the countries named in the Order has perpetrated a terrorist attack in
the United States” and that the sequence of events leading up to the Executive Order raises
questions as to whether national security concerns in this regard are “rational.” Washington v.
Trump, No. 17-35105, 2017 WL 526497, at *8-9, 10 (9th Cir. Feb. 9, 2017); see also Aziz v.
Trump, No. 117CV116LMBTCB, 2017 WL 580855, at *3 (E.D. Va. Feb. 13, 2017).
CONCLUSION
ADL and JCPA believe that enjoining Section 5(d) of the Executive Order is consistent
with the principles underlying the Constitution. Absent injunctive relief, there will almost
certainly be irreparable harm to countless people, just as there was when the United States
shamefully turned away those on the St. Louis desperately seeking safety, excluded immigrants
from China and interned Japanese Americans. As with the 254 passengers aboard the St. Louis
who died in the Holocaust, an apology years later would be woefully insufficient to address the
damage done. ADL and JCPA believe that enforcing Section 5(d) of the Executive Order risks
once again sacrificing the nation’s core values in favor of prejudice and fear – a sacrifice that
history has repeatedly proven would have profound consequences both to the persons who suffer
as a result and to the still-vibrant vision of the shining city on the hill.

22

Dated: March 3, 2017

Respectfully submitted,

Of counsel:
John B. Harris
Jeremy Goldman
Caren Decter
Jessica Smith
Rayna Lopyan
Lily Landsman-Roos
Lakendra Barajas
FRANKFURT KURNIT KLEIN & SELZ,
P.C. 488 Madison Avenue
New York, New York 10022

/s/ David E. Mills
David E. Mills (Bar No. 16654)
Alyssa T. Saunders (pro hac vice motion
forthcoming)
Cooley LLP
1299 Pennsylvania Avenue, NW, Suite 700
Washington, DC 20004-2400
Telephone: [phone]
Counsel for Anti-Defamation League and Jewish
Council for Public Affairs

Steven M. Freeman
Lauren A. Jones
Melissa Garlick
Michael Lieberman
ANTI-DEFAMATION LEAGUE
605 Third Avenue
New York, New York 10158
Doron F. Ezickson
ANTI-DEFAMATION LEAGUE
1100 Connecticut Avenue, Northwest,
Suite 1020 Washington, DC 20036
Counsel for Anti-Defamation League
David Bohm
DANNA MCKINTRICK, P.C.
7701 Forsyth Blvd., Suite 800
St. Louis, MO 63105
Counsel for Jewish Council for
Public Affairs

23

APPENDIX
The Journey of the St. Louis and its Passengers

Source: “Map Showing the Voyage of the St. Louis, May 13-June 17, 1939.”, American Jewish
Joint Distribution Committee Archives, “The Story of the S.S. St. Louis (1939)”;
http://archives.jdc.org/educators/topic-guides/the-story-of-the-ss-st.html (Last visited February 5, 2017).

Source: Dara Lind, “How America’s Rejection of
Jews Fleeing Nazi German Haunts our Refugee
Policy Today,” Vox (January 27 2017),
http://www.vox.com/policy-andpolitics/2015/11/19/9760060/refugees-historyholocaust. (Last visited February 5, 2017).

Source: “Some of the 907 passengers on board the St.
Louis arriving in Belgium after being refused entry
into Cuba and the U.S.”, American Jewish Joint
Distribution Committee Archives, “The Story of the
S.S. St. Louis (1939)”;
http://archives.jdc.org/educators/topic-guides/thestory-of-the-ss-st.html (Last visited February 5, 2017).

24

In the wake of the Executive Order, and as a tribute to Holocaust Remembrance Day on January
27, 2017, a Twitter account was established in the name of the St. Louis Manifest
(@Stl_Manifest, accessible at https://twitter.com/stl_manifest , which has tweeted out the names
and stories of the ship’s passengers, examples of which appear below and on the following
pages:

25

26

142618091

27