State of Washington, et al., v. Trump., et al

Filing 46

MOTION for Leave to File Amicus Brief, filed by Amicus Washington State Labor Council. (Attachments: # 1 Exhibit A, # 2 Proposed Order) Noting Date 2/2/2017, (Robbins, Jennifer)

Exhibit A

THE HONORABLE JAMES L. ROBART

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON,

No. 2:17-cv-00141-JLR

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Plaintiff,
v.

BRIEF OF AMICUS CURIAE
WASHINGTON STATE LABOR
COUNCIL

DONALD TRUMP, in his official capacity as
President of the United States; U.S.
DEPARTMENT OF SECURITY; JOHN F.
KELLY, in his official capacity as Secretary of
the Department of Homeland Security; TOM
SHANNON, in his official capacity as Acting
Secretary of State; and the UNITED STATES
OF AMERICA,

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Defendants.
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I.

INTRODUCTION & RELIEF REQUESTED

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The United States for decades maintained discriminatory immigration laws excluding

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Chinese laborers and others of Chinese descent; in 2012, the United States House of

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Representatives passed a resolution acknowledging that “ United States was founded on the
the
principle that all persons are created equal”and formally expressing the regret of the House of

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Representatives for the Chinese Exclusion Acts. H.R. Res. 683, 112th Cong. (2012).
After decades of maintaining discriminatory national origin quotas that disfavored nonEuropean immigrants, Congress enacted the Immigration and Nationality Act Amendments of
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1965, Pub.L. No. 89-236, 79 Stat. 911 (1965), which finally ended “
strong overtures of an

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indefensible racial preference” in our immigration law. John F. Kennedy, A Nation of

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Immigrants 77 (1964).

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Acknowledging “ fundamental injustice of the evacuation, relocation, and internment
the

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of United States citizens and permanent resident aliens of Japanese ancestry during World War
II,”in 1988, President Ronald Reagan signed the Civil Liberties Act of 1988 to offer a formal

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apology, and grant reparations in the amount of $20,000, to each living victim of the Japanese

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internment resulting from an Executive Order issued in 1942. Civil Liberties Act of 1988, Pub.

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L. No. 100-383, 102 Stat. 903 (1998). The Act stated that the government “
actions were carried

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out without adequate security reasons… and were motivated largely by racial prejudice, wartime
hysteria, and a failure of political leadership.” Id.

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One week after assuming office, President Donald Trump signed an Executive Order

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fulfilling his campaign promise to enact a “
Muslim ban”and to subject immigrant applicants to

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“
extreme vetting.” The Executive Order bans all refugees from entering the country for 120

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days, bans all refugees from Syria indefinitely, and bans immigrants and non-immigrants from

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seven majority-Muslim countries from entering the U.S. for 90 days: Iran, Iraq, Libya, Somalia,

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Sudan, Syria, and Yemen.

President Trump defends the Executive Order with rhetoric of

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national security. Future leaders of our government may well feel compelled to issue formal
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apologies or statements of regret for this unlawful and discriminatory act.

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The Washington State Labor Council (“
WSLC” submits this brief in support of the State
)

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of Washington’ Motion for a Temporary Restraining Order (“
s
TRO” because the members of its
)

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affiliated unions are suffering irreparable harm from the implementation of the Executive Order,

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and those members will continue to suffer irreparable harm until and unless the Executive Order

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is enjoined.

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II.

STATEMENT OF FACTS

The WSLC is a state-wide labor council comprised of more than 600 local unions and

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represents more than 450,000 rank-and-file union members working in Washington State. It is
widely considered to be the “
voice of labor”in Washington State. Declaration of Jeff Johnson

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(“
Johnson Dec.” ¶ 2. WSLC has a strong interest in advocating for the liberty interests of
),

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Washington State workers. Id. Because of the irreparable harm being done to union members in

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Washington State, which is set forth in detail below, WSLC and other labor leaders have spoken

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out vehemently against President Trump’ Executive Order. Id., ¶ 4 and Ex. A (statements from
s

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labor unions regarding the Executive Order). The WSLC submits this brief to support the State’
s
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efforts to enjoin the unconstitutional, unlawful Executive Order.
III.

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ARGUMENT & AUTHORITY

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The WSLC joins, but will not repeat here, the State’ meritorious argument that the
s

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Executive Order violates both the United States Constitution and various federal statutes. It

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submits this brief separately to add its voice to the chorus of voices seeking to point out to this

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Court, as well as to the public at large, the truly appalling consequences this misguided and

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wrongfully-motivated Executive Order will have if not promptly enjoined. The WSLC also
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writes to emphasize that careful review of the history of discriminatory immigration rules

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demonstrates the significance of the irreparable harm that is being caused in particular by the

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fact that this Executive Order violates the Immigration Act of 1965— the statute meant to end

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pernicious discrimination in immigration law.

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A.

Absent injunctive relief, residents of Washington will suffer irreparable
harm because their government, in clear contravention of the Immigration

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Act of 1965, has labelled some of them as being less valuable than others, and
as having no rights.

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“
The negative policies the United States government establishes concerning immigrants,

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non-immigrant visitors and refugees of certain national origins or religions reflects the attitudes

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the government has of its own citizens of those same national origins and religions – that they

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are less valued, less than equal. Such policies cause harm to our unions’members that cannot be

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undone.” Johnson Dec. ¶ 6.

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In discussing the Immigration Act of 1965, Secretary of State Dean Rusk similarly
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observed that immigration rules have significant domestic, as well as foreign, meaning:

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[G]iven the fact that we are a country of many races and national origins, that those who
built this country and developed it made decisions about opening our doors to the rest of
the world; that anything which makes it appear that we, ourselves, are discriminating in
principle about particular national origins, suggests that we think ... less well of our own
citizens of those national origins, than of other citizens....1

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Attorney General Katzenbach accurately assessed the damage done by discriminatory

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immigration rules that Act was meant to abolish:

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I do not know how any American could fail to be offended by a system which presumes
that some people are inferior to others solely because of their birthplace.... The harm it
does to the United States and to its citizens is incalculable.”

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Hearings on S. 500 Before the Subcomm. on Immigration and Naturalization of the Senate

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Comm. on the Judiciary, 89th Cong. 119 (1965) 9.

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Through this language, the Congress abolished discrimination long codified in statutory
national origin quotas which disfavored non-European immigrants.

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Immigration: Hearings Before Subcomm. No. 1 of the Comm. on the Judiciary, House of Representatives, on H.R.
7700 and 55 Identical Bills, 88th Cong. 901-02 (1964), reprinted in 10A Oscar Trelles & James Bailey, Immigration
and Nationality Acts: Legislative Histories and Related Documents, doc. 69A (1979) 390. See also id. at 410
(remarks of Attorney General Robert Kennedy) (noting that the bill “
would remove from our law a discriminatory
system of selecting immigrants that is a standing affront to millions of our citizens”
).

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Except as specifically provided in paragraph (2) and in sections 1101(a)(27),
1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or
priority or be discriminated against in the issuance of an immigrant visa because of the
person's race, sex, nationality, place of birth, or place of residence.

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8 U.S.C. § 1152 (enacted by the Immigration and Nationality Act Amendments of 1965, Pub.L.

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No. 89-236, 79 Stat. 911 (1965)).

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Those quotas were introduced into law in 1921, and extended by the Immigration Act of
1924, which required a study of the ethnic sources of America’ white population from the
s

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origins of settlement; and quotas were derived from the percentages of the U.S. population that
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were derived from any particular nation. This had the effect of limiting immigration from Asia,

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and non-Protestant eastern and southern Europe. Pub.L. 67-5; 42 Stat. 5 (1921); Pub.L. 67-5; 42

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Stat. 5 (1924). The Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163 retained

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modified quotas that again reflected the existing demographic mix of U.S. inhabitants and had no

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purpose other than to maintain the existing ethnic and religious composition of the national

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population. See Mary Jane Lapointe, Discrimination in Asylum Law: The Implications of Jean v.

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Nelson, 62 Ind. L.J. 127, 149 (1986). That discriminatory purpose became the focal point of

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intense debate which fueled the impetus for the 1965 Act.

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President Harry Truman opposed the discriminatory quota system and when his veto of

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the 1952 act was overridden, he denounced the national origins quota system as being contrary to

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American values because it “
discriminates, deliberately and intentionally, against many of the

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peoples of the world.” The President's Veto Message, June 25, 1952, reprinted in The

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President’ Comm’ on Imm. and Nat., Whom We Shall Welcome 277. President Truman’
s
n
s

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Commission on Immigration and National Origin had found that “ major disruptive influence
the
in our immigration law is the racism and national discrimination caused by the national origins
system,” and that the present system should be replaced with a “
unified quota system, which
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would allocate visas without regard to national origin, race, creed, or color.” The President’
s

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Comm’ on Imm. and Nat., Whom We Shall Welcome 263 (submitted Jan. 1, 1953).
n

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In 1958, then Senator John Kennedy published a broadside against the national origin
quota system in which he criticized the system for having “
strong overtures of an indefensible

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racial preference.” John F. Kennedy, A Nation of Immigrants 77 (1964). As President, he
introduced legislation to end the quota system.

President Lyndon Johnson strongly advocated

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for the bill, which was enacted in 1965, as one of three complimentary bills passed early in

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Johnson's presidency, the others being the Civil Rights Act of 1964, Pub.L. No. 88-352, 78 Stat.

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241 (1964) and the Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (1965).2 See

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Roger Daniels, Coming To America: A History of Immigration And Ethnicity In American Life

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338 (1990) (observing that the Civil Rights Act, Voting Rights Act and Immigration Act
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“
represent a kind of high-water mark in a national consensus of egalitarianism” Vernon M.
);

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Briggs, Jr., Immigration Policy and the American Labor Force 62 (1984) (“
Just as overt racism

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could no longer be tolerated in the way citizens treated their fellow citizens, neither could it be

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sanctioned in the laws that governed the way in which noncitizens were considered for

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immigrant status.”
).

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Senator Hiram Fong described the purpose of the Act as “
seeking an immigration policy reflecting America’ ideal
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of the equality of all men without regard to race, color, creed or national origin”which he noted reflected the values
of the Civil Rights Act:
Last year we enacted the historic Civil Rights Act of 1964, which was designed to wipe out the last
vestiges of racial discrimination against our own citizens . . . . As we move to erase racial discrimination
against our own citizens, we should also move to erase racial barriers against citizens of other lands in our
immigration laws.
Hearings on S. 500 Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th Cong.,
1st Sess. 44-45 (1965).

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Senator Edward M. Kennedy argued that the national origins quota system was “
contrary

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to our basic principles as a nation.” 111 Cong.Rec. 24, 225 (1965). Senator Joseph Clark

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insisted that “ national origins quotas and the Asian-Pacific triangle provisions are irrational,
the
arrogantly intolerant, and immoral” and that it was unjust that “ brilliant Korean or Indian
[a]

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scientist is turned away, while the northern European is accepted almost without question.” Id.
at 24, 501. Representative Paul Krebs stated that immigration rules based on national origin

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were “
repugnant to our national traditions,”and that “ must learn to judge each individual by
we

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his own worth and by the value he can bring to our Nation.”Id. at 21, 778. Representative

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Dominick Daniels rejected the national origin quotas that “
racism simply has no place in

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America in this day and age.” Id. at 21, 787. Other senators and officials condemned the

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national origins quota system as “
un-American” and “
'
totally alien to the spirit of the
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Constitution,” and praised the new bill for its recognition of individual rights. Hearings on S.
'

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500 Before the Subcomm. on Imm. and Nat. of the Senate Comm. on the Judiciary, pt. 1, 89th

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Cong., 1st Sess. 11 (1965) (statement of Attorney General Katzenbach), 47 (statement of

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Secretary of State Dean Rusk), 127 (statement of Senator Hugh Scott), 165 (statement of Senator

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Paul Douglas) and 217 (statement of Senator Robert Kennedy); see also Hearings Before

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Subcomm. No. 1 of the House Comm. on the Judiciary, 88th Cong., 2d Sess. 723 (1964), where

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the Secretary-Treasurer of the AFL-CIO, James B. Carey, quotes the AFL-CIO Declaration in
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support of the bill).

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The Immigration Act of 1965 repealed a system that, in the words of President Johnson,

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“
violated the basic principle of American democracy— the principle that values and rewards each

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man on the basis of his merit . . . .”T. Aleinikoff & D. Martin, Immigration Process and Policy

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55 (1985). The Executive Order at issue here denies Syrian refugees, immigrants and the
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resident family members of immigrants of the seven excluded nations precisely that - evaluation

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on individual merit. Instead, the blanket order works precisely as did the repealed quota system

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by denying liberty to whole classes of people based on their national origin. The Executive
Order therefore violates federal law and should be enjoined on that basis.

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2.

Residents of Washington are also suffering irreparable harm because their
government has interfered with their liberties by limiting their movement,
their ability to associate with their families, and to work.

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Lost opportunities to engage in one’ chosen profession, to travel, and to be united or
s

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reunited with families and loved ones are all irreparable, because losses of this kind sustained by

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individuals affected by the Executive Order cannot be remedied by money damages. See, e.g.,

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Enyart v. Nat’ Conf. of Bar Examiners, Inc., cert. denied, 132 S. Ct. 366, 181 L.Ed.2d 232
l

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(2011); Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). In addition to

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the irreparable harm set forth in the State of Washington’ Motion for a Temporary Restraining
s

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Order, individuals who live and work in Washington are being subjected to the irreparable harm

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described herein.

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Among WSLC’ affiliated unions, unions who have signed a Solidarity Charter with the
s

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WSLC and other labor allies are unions whose members are directly impacted by the Executive

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Order, because they are immigrants or non-immigrant temporary workers from one of the seven

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banned countries whose ability to travel into and out of the United States is prohibited outright or
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whose inability to re-enter the United States after travelling will put their livelihoods in jeopardy.

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Johnson Dec., ¶ 6. Members are also affected because the ability of their families to travel into

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the United States is prohibited temporarily or indefinitely, disrupting the members’family ties,

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personal freedoms and economic security. Id. The members of unions affiliated or allied with

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WSLC affected by the ban include hospitality workers, retail employees, health care industry
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workers, laborers, factory workers, and state, county and municipal employees among others. Id.

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These union members are exceptionally diverse, comprised of an array of races, nationalities,

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and religions. Id. The negative policies the United States government establishes concerning

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immigrants, non-immigrant visitors and refugees of certain national origins or religions reflects

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the attitudes the government has of its own citizens of those same national origins and religions –
that they are less valued, less than equal. Id. Such policies cause harm to unions’members that
cannot be undone. Id.

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United Automobile, Aerospace and Agricultural Implement Workers of America, Local

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4121 (“
UAW 4121” represents academic student employees (“
)
ASEs” at the University of
)

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Washington (“
UW” Declaration of David Parsons (“
).
Parsons Dec.” ¶ 1. Some ASEs are
),

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citizens or nationals of one of the seven countries listed in the Executive Order and are present in
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the U.S. with valid visas. Id., ¶ 3. Many have expressed serious concerns about the impact of

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the Executive Order on their work at and for UW. Id. In particular, since the Executive Order

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has been issued, impacted ASEs from the seven named countries believe they can and should not

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travel outside the U.S., and have been advised by UW to avoid any international travel. Id. This

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impacts in numerous ways these ASEs’ability to perform research and complete their courses of

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study. Id. At least one ASE conducts research that requires overseas travel, and therefore may

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be significantly delayed or lose altogether the work completed pursuant to this project, which has
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been in process for years and directly impacts degree completion. Id. For some ASEs, any delay

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in completing research and course work could jeopardize funding and employment opportunities.

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Id. Additionally, ASEs are restricted from visiting close family members or friends outside the

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U.S., which creates significant emotional hardships. Id.

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UAW 4121 is aware of at least one ASE who is a citizen or national of one of the seven

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countries, and is outside the U.S. Id., ¶ 4. If he or she is unable to re-enter the U.S. as a result of

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the Executive Order, his/her ability to conduct research for UW related to his/her course of study
could be limited, and his/her graduate program training sequence could be disrupted. Id.

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Service Employees International Union 6 Property Services Northwest (“
SEIU 6” has
)
historically represented immigrants and refugees employed in the commercial janitorial industry,

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and its membership often reflects the different flows of immigrants and refugees coming into the

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U.S. workforce. Declaration of Matt Haney (“
Haney Dec.” ¶ 2. The current membership
),

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includes over 350 individuals originally from the seven affected countries in the Executive Order

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travel ban. Id., ¶ 3. The majority of these members originated from Somalia. Id. The members

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from these countries tend to save up their money in order to be able to afford to return to their
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countries of origin for a month or more. Id.

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Since President Trump issued the Executive Order banning all refugees from entering the

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country for 120 days, banning all refugees from Syria indefinitely, and banning immigrants and

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non-immigrants from seven majority-Muslim countries from entering the U.S. for 90 days, SEIU

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6 members who have made travel plans to Somalia have been contacting union representatives at

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SEIU 6 expressing their fears that they may not be able to return to the U.S., to their families and
to their jobs, if they travel now. Id., ¶ 4. One member who has purchased airfare to Somalia

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scheduled to leave February 4, 2017, is now apprehensive of leaving due to fears she will not be
able to return because of her Muslim faith, even though she is a U.S. citizen. Id.

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Additionally, an SEIU 6 member currently on leave in Somalia has contacted union

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representatives about fears of losing his job and in turn his health coverage, essential to

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controlling his chronic health condition, because he will not be able to return to the United States

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by April 15th as was arranged with his employer. Id., ¶ 5.

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All of the foregoing harms are irreparable, as they cannot be remedied by money
damages.

It cannot be disputed that implementation of the Executive Order is causing

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irreparable injury to individuals living and working in Washington.
IV.

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CONCLUSION

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The harms being suffered as a result of the unlawful and unconstitutional Executive

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Order are severe, and the need for injunctive relief is urgent. Because each of the elements for

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injunctive relief are met, the Court should grant the temporary restraining order requested by the

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State.
DATED this 2nd day of February, 2017.

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s/Jennifer Robbins
Jennifer Robbins, WSBA No. 40861
s/Dmitri Iglitzin
Dmitri Iglitzin, WSBA No. 17673
s/Kathleen Phair Barnard
Kathleen Phair Barnard, WSBA No. 17896
Schwerin Campbell Barnard Iglitzin & Lavitt LLP
18 West Mercer Street, Ste 400
Seattle, WA 98119-3971
[phone]
[e-mail]
[e-mail]
[e-mail]

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Counsel for the Washington State Labor Council

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