State of Washington v. Trump (17–35105): the Administration’s Attempt to Undo a District Court Stay of the #MuslimBan [as of 2/7/17]

Keeping Track & Making Sense of the Ninth Circuit Appeal

[For a further update on the status of this case, as of 2/14/17, see the post here.]

There has been a flurry of filings in the Ninth Circuit Court of Appeals since U.S. District Court Judge James L. Robart — a George W. Bush appointee — issued a nationwide stay on Trump’s Executive Order this past Friday, January 3, 2017:

  • Trump, through the DOJ, filed an Emergency Motion for: (1) an Administrative Stay (which was denied), and (2) a Stay Pending Appeal (which will be heard 2/7/17 at 3:00 p.m. PST);
  • An amicus curiae motion and brief by 137 Tech. Cos. in support of the States, arguing that the EO undercuts American competitiveness globally, which was also joined by (96 original cos. + Pivotal + 31 other cos. + Groupon + Quantcast + CREDO Mobile + Akamai Tech. + Postmates + Fitbit + Molecule Software, Inc. + SoundCloud, Inc. + SpotHero, Inc.);
  • An amicus curiae motion and brief by Korematsu Center in support of the States, arguing that the government’s “plenary power” is a racist relic of an odious past stemming from Chinese Exclusion;
  • An amicus curiae motion and brief by Law Professors (arguing that the EO imposes irreparable harms upon international students and researchers, who make significant contributions to the US);
  • An amicus curiae motion and brief by ACLU & ACLU of Washington in support of the States, arguing that the government’s invocation of “plenary powers” is flawed because they are still subject to constitutional limitations and subject to judicial review;
  • An amicus curiae motion and brief by Americans United for Separation of Church and State and Southern Poverty Law Center, again in support of the States, arguing that the EO discriminates against Muslims based upon their faith, that it fails both the Larson and Lemon tests, and that it therefore violates the Establishment Clause;
  • An amicus curiae motion and brief by HIAS, Inc. in support of the States, arguing that the EO failed to comply with the 1980 Refugee Amendments, that refugees have already undergone extensive investigation, and that lifting the stay of the EO will only lead to further vulnerability of these refugees;
  • An amicus curiae brief by the States of New York, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Mexico, Oregon, Rhode Island, Vermont, Massachusetts, Pennsylvania, and Virginia, and the District of Columbia (bringing the total to 18 states and D.C.) arguing in support of the States that EO hinders the free exchange of information, ideas and talent between the affected countries and the States, including educational institutions, small business, and other economic harms through tax revenues, etc. (which was subsequently amended to include New Hampshire and North Carolina);
  • An amicus curiae brief by four Constitutional Law Scholars argued in support of the States and in particularly re: the government’s “disturbing claim” that EO is beyond the reach of the Constitution and the courts. Specifically, even though the control over immigration is “plenary” and entitled to deference, the President’s authority is still limited by the Constitution, and there is still a critical role for the courts to assess the constitutionality of any exercise of that authority.
  • An amicus curiae brief by the Anti-Defamation League argues in support of the States. America is premised upon the notions of equality, liberty and justice. Historically, living up to those ideals has been uneven. At times, America rises up to the challenge, while at other times (e.g., the St. Louis tragedy, Japanese internment and Chinese exclusion), it was overcome by prejudice and fear, with devastating consequences;
  • An amicus curiae brief filed by Service Employees International Union (“SEIU”) in support of the States by providing personal stories from immigrant SEIU members that are either from the impacted countries — Somalia, Sudan, Iraq — as well as, have ties or connections to affected countries, including citizens affected by the EO and refugees with ties;
  • An amicus curiae brief filed by the American Center for Law and Justice in support of the U.S. Government arguing that national security justifies the EO and that the district court’s TRO was “extraordinary,” and issued without legal or factual analysis, and that there is no classification based upon religion;
  • An amicus curiae brief filed by the National Immigrant Justice Center and ASISTA in support of the States to explain the additional ways the EO violates the INA, including its effects on visas for victims of human trafficking, victims of specified criminal offenses, and visa pertaining to spouses of U.S. citizens, as well as travel by admitted refugees and asylees, and highlighting specifically the violations of statutes and regulations regarding those categories;
  • An amicus curiae brief filed by 11 additional law professors in support of neither party raises and explains the issue of state standing. Specifically, the law professors explain: (1) “proprietary interests”; and (2) “quasi-sovereign interests”;
  • An amicus curiae brief filed by US Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center in support of the U.S. Government’s highlighting past uses of plenary powers regarding immigration, including President Carter’s Executive Order 12172, Reagan’s 1981 and 1985 exercise of 8 U.S.C. § 1182(f), President Obama’s 2011 exercise of 8 U.S.C. § 1182(f);
  • An amicus curiae brief filed by Washington State Labor Council in support of the States regarding highlighting the apologies necessary by the U.S. follow Japanese internment during WWII, the racism that undergirded the Chinese Exclusion Act and JFK’s enactment of the INA, and identifying affected union members who would suffer irreparable harms;
  • An amicus curiae brief filed by The Jewish Foundation in support of the States arguing that there is no rational basis for the EO, and that it is instead motivated by religious discrimination, and against resurrection of discredited rationales from Hirabayashi and Korematsu that national security interests render the EO unreviewable. These decisions, like those supporting Jim Crow laws and gender discrimination, should be overturned;
  • An amicus curiae brief filed by the American Immigration Council, National Immigration Project of the National Lawyers Guild, Northwest Immigrant Rights Project, Human Rights First, KIND (Kids in Need of Defense), and the Tahirih Justice Center in support of the States arguing that: (1) this appeal is inappropriate because TROs are generally non-appealable; (2) the EO is subject to judicial review; and (3) there are incalculable and irreparable harms under the EO;
  • An amicus curiae brief filed by Freedom Watch, Inc. in support of the U.S. government arguing that: the status quo before the EO is untenable and overly lax; the TRO is unwarranted because the States will not prevail on the merits; the federal government’s ability to regulate immigration is nearly limitless; and that the EO targets “failed states” and a hostile nation, Iran, not a religion; and a lack of standing;
  • An amicus curiae brief filed by Muslim Advocates, American Muslim Health Professionals, Islamic Medical Association of North America, Muppies, Inc., National Arab American Medical Association, and Network of Arab-American Professionals in support of the States arguing that: (1) the EO is subject to judicial review as well as constitutional limitations; and (2) the purpose of the EO is animus towards Muslims, as demonstrated by overt animus by POTUS, and a disproportionate injury to Muslims, including longtime U.S. residents;
  • Washington and Minnesota States’ Response Brief;
  • The Administration’s Reply Brief; and
  • State of Hawaii’s Emergency Motion to Intervene (which was denied), or in the alternative, to file an amicus brief (granted).
CREDIT: AbacaPress/TNS/Olivier Douliery

Appellate Court System Background

The federal court system (under Article III of the U.S. Const.) has a three tier system: (1) at the lowest level are U.S. District Courts; (2) overseeing the district courts are Circuit Courts, which cover specific geographic locations; and (3) above the Circuit Courts is the Supreme Court of the United States.

This particular case was filed in U.S. Dist. Court in the Western District of Washington, falling within the 9th Circuit Court of Appeals, which covers California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Hawaii, Alaska, Guam, and the Northern Mariana Islands. (See Circuit Map.)

Amicus Curiae or “friend of the court” briefs are filed by non-parties to the lawsuit, who can demonstrate a strong interest in the matter, and they petition for permission to submit a brief, and attempt to elucidate a position or consideration not covered by the merits briefs.

CREDIT: NBC News screen grab of U.S. District Court Judge James L. Robart

Factual and Procedural Background

On 1/27/17, Trump signed an Executive Order implementing a nationwide immigration ban for nationals from seven majority-Muslim countries, halting refugee admissions, and creating a selective carve-out for some Christian and non-Muslim refugees (hereafter the “EO”). On 1/30/17, the State of Washington filed a Complaint in U.S. Dist. Ct. seeking to enjoin the implementations of Sections 3(c), 5(a)-(c) and 5(e) of the EO. (Case No. 17–141 (W.D. Wash.).)

The State of Washington argued that EO violated the 5th Amend.’s equal protection and due process guarantees, the Establishment Clause, and the Immigration and Nationality Act’s prohibition against discrimination on the basis of national origin. On 2/1/17, the State of Minnesota joined this litigation as a plaintiff. Supplemental briefing on the TRO and an Amended Complaint were then filed.

A response brief was filed on behalf of Trump on 2/2/17, and a hearing was held by Judge James L. Robart the following day on 2/3/17.

The State of Hawaii had filed its own lawsuit in the District Court for the District of Hawai‘i (Case No.17–00050 (D. Haw.), Dkt. #1, #2–1). Hawai‘i filed a Motion to Intervene in this Ninth Circuit Court appeal (since denied), or in the alternative to file as an amicus curiae (granted).

U.S. Government’s Emergency Motion for Stay

The U.S. Government filed this appeal in the Ninth Circuit to enjoin the TRO granted by Judge Robart. There are three main lines of attack:

  1. The EO is a lawful exercise of POTUS’s plenary control over the admission of aliens in the United States under 8 U.S.C. § 1182(f).
  2. Aliens seeking admission to the U.S. have no constitutional rights and it is the U.S. which has a sovereign prerogative to admit or exclude those aliens. See Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The exclusion of aliens is a fundamental act of sovereignty . . . inherent in the executive power to control the foreign affairs of the nation.”)
  3. The TRO was: (1) issued in contravention of Congress’s delegation to the President of the authority to suspend admission of any class of aliens (under 8 U.S.C. § 1182(f)), (2) issued even though there is no likelihood of success on the merits, (3) issued even though the States of Washington and Minnesota are not parties to the EO, (4) issued even though the States lack standing or any right to challenge the denial of any entry or visa to third-party aliens, and (5) vastly overbroad in that it was not tied to the claimed harms, extends to aliens abroad who currently have no visas, and applies nationwide, in conflict with another district court (in Mass.) See Loughalam v. Trump, Civ. No. 17–10154-NMG, Order 11 (D. Mass. Feb. 3, 2017).

Regarding standing, the Government’s main argument is that a State “cannot bring a parens patriae action against federal defendants,” and that the States of Wash. and Minn. therefore lack the standing to sue in the first place. Instead, these are the citizen’s rights with respect to their relations with the federal government. See Dkt. 14, at 9. Moreover, the States’ asserted harms are too attenuated and speculative.

At issue, it appears, is a factual determination of whether the EO covers legal permanent residents (“green card” holders). Within the government’s briefing, it is claimed that the EO does not cover such individuals, which thereby undercuts the States’ arguments regarding their harm. However, as many have noted, there was widespread confusion from the WH about the scope of the EO, with Steve Bannon even directing DHS and the State Dept. that the EO did include legal permanent residents before a memorandum issued by Donald F. McGahn II (WH counsel) indicated that it did not.

The Government asserts that standing is only available under very narrow circumstances, arguing that judicial review can only be “at the behest of an alien adversely affected, and even then only if the alien is subject to removal proceedings,” under 8 U.S.C. § 1252. See Dkt. 14, at 11.

Regarding POTUS’s authority to issue the EO, it is argued that in addition to its own powers, it also has the immigration authority delegated to it by Congress under 8 U.S.C. § 1182(f). Under this formulation, the Government contends, POTUS is “generally shielded from administrative or judicial review.” See Dkt. 14, at 12.

Washington on its part argued that § 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides that “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.” (Emphasis Added.) But the Government believes that this prohibition does not apply to the suspension of visas.

Perhaps most controversially, the Government indicates that the Courts should not “second-guess” the President’s judgment, which it is argued is a political function in this case, and that likewise, the Court’s second-guessing would be inappropriate because it does not have access to classified information about threats posed. See Dkt. 14, at 15–16.

Next, the Government also argues that Washington’s constitutional challenges are without merit. Washington does not qualify as a “person” under the Fifth Amendment, nor can it invoke the rights of its citizens under the Fifth Amendment, according to the Gov’t. See Dkt. 14, at 18. Unadmitted and nonresident aliens, it is also claimed, also have no constitutional right of entry, and therefore no constitutional violation. Id. There is no Establishment Clause violation because it is claimed that the EO is neutral with respect to religion and because that claim is unripe as not taking effect for at least 120 days. See Dkt. 14, at 19.

Last, the Government also takes issue with the scope of the TRO.

States’ Response to Emergency Motion

The thrust of the States’ response was that the EO caused considerable chaos, that the States established considerable extraordinary and irreparable harms, and that the issuance of the TRO resulted in an immediate return to normal immigration procedures, families being reunited, stranded students and faculty returning to the States, and longtime State residents returning to their homes.

Washington and Minnesota claim that the U.S. Government’s appeal of the TRO was procedurally improper because the TRO automatically ends when “the [District] court can hear and decide the States’ request for a preliminary injunction,” and thus the Government’s appeal is improper. See Dkt. 28, at 5.

Even if the TRO were reviewable, the States contend that the government cannot meet their burden of establishing a likelihood of success, and in particular that there will be any “irreparable injury” because the TRO simply maintained the status quo, much less that the balance of hardships favor them, or that reinstating the EO is in the “public interest.” See Dkt. 28, at 6–7.

The States argue that separation of powers concerns are not an irreparable harm, and that “national security,” is an insufficient justification for the judiciary to abdicate their role. See Dkt. 28, at 7. Maintaining the status quo is then argued for as being in the interest of all parties. Id. at 8 (citations omitted). Regarding “second-guessing” of the Executive, the States argue that courts routinely review those decisions, citing e.g., Hamdi, Boumediene, Korematsu. Id. at 9–10.

Again, the factual issue of whether the EO covers legal permanent residents comes up. The States assert that this case “involves longtime residents who are here and have constitutional rights.” See Dkt. 28, at 10. The States also refer back to their affirmative showing to justify the Court’s right and duty to examine the true motives behind the EO. Id.

Regarding the issue of standing, the States rely upon not being typical litigants but receiving “special solicitude” under Massachusetts v. EPA, 549 U.S. 497, 518, 520 (2007) based on two grounds: (1) harms to proprietary interests; and (2) harms to their quasi-sovereign interests. See Dkt. 28, at 11.

Procedurally, the States believe that it merely needs to state a plausible claim” to an injury in fact, which is traceable to the defendants. (I.e., it’s too early for an attack on standing, which needs to be taken at the district court level.) Id.

The district court’s finding that “the States themselves are harmed” based on harm to public universities, as well as injuries to the operations, tax bases, and public funds of the State, have likewise been un-rebutted by the U.S. Govt. See Dkt. 28, at 12–13.

Regarding the States’ standing under parens patriae, the States argue that they have sufficiently alleged grievous harms on their residents, and that those harms were unrebutted by the government. The States then counter the notion that parens patriae suits against the federal government are never permitted under Massachusetts v. Mellon, 262 U.S. 447 (1923), by invoking the protection of “quasi-sovereign interest.” See Dkt. 28, at 13–14 (citing ellon, at 481–82, 485, and Massachusetts v. EPA, at 520 n.17, among others).

[FINISH UP HERE]

U.S. Government’s Reply Brief

The States’ invocation of the “special solicitude” for States is limited to the protection of a loss of “sovereign territory.” See Dkt. 70, at 1–2 (citing Massachusetts v. EPA, at 519–20, 522–23). Here, it is argued, no territorial interests are at stake, and immigration is an exclusive federal power. See Dkt. 70, at 2.

Aliens outside of the U.S. have “no substantive right or basis for judicial review in the denial of a visa at all.” See Dkt. 70, at 2 (citing Brownell v. Tom We Shung, 352 U.S. 180, 184 n.3, 185 n.6 (1956)). Likewise, issuing a visa does not confer any right of admission under 8 U.S.C. § 1201(h) as the Secretary of State “may, at any time, in his discretion, revoke such visa or other documentation” under § 1201(i).

Even if that alien were admitted to and developed significant ties with this country, they still have no protected property or liberty interest in the retention of their visa under Knoetze v. U.S. Dep’t of State, 634 F.2d 207, 212 (5th Cir. 1981). Nor can the States challenge the decision not to admit refugees. See Dkt. 70, at 3.

Again, the issue of LPR comes up as a primary issue. The government reiterates the States’ ostensible lack of standing to sue re: aliens outside the United States. See Dkt. 70, at 6.

Regarding the Establishment Clause, the government re-asserts facial neutrality with respect to religion, in that Section 3(c) of the EO references the seven countries previously identified under 8 U.S.C. § 1187(a)(12) as being heightened risks of terrorism. See Dkt. 70, at 6–7. Also Iran, Sudan, and Syria were designated as state sponsors of terrorism, and Libya, Somalia, and Yemen were determined to be “safe haven[s] for terrorists.” Section 5(a) is also claimed to be facially neutral because it suspends refugees from all countries, not just the seven identified in Section 3(c). See Dkt. 70, at 7.

Providing preferential treatment to Christian minorities then, it is claimed comports with the Bill of Rights under Kong v. Scully, 341 F.3d 1132, 1141 (9th Cir. 2003). See Dkt. 70, at 7.

Because the preference for Christian minorities in the EO is formulated as “members of persecuted minority religions, the government relies on the district court of Massachusetts determination in Louhghalam that Section 5(b) could conversely “be invoked to give preferred refugee status to a Muslim individual in a country that is predominantly Christina.” See Dkt. 70, at 8. Again, it appears the government’s sole justification for the EO is based on national security. See Dkt. 70, at 8–9.

The government then argues that a nationwide TRO is “vastly overbroad” because it covers not only LPRS, but also aliens abroad that have no constitutional rights to entry into the U.S. See Dkt. 70, at 10. At a minimum, its scope should be limited to “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the [U.S.] in the future.” See Dkt. 70, at 11.

Amici Curiae Briefs

  1. The 137 Tech. Cos.’ brief argues that the EO: substantially hinders the ability of American companies to attract great talent, increases costs; makes it more difficult for American firms to compete globally; and gives a significant new incentive to global enterprises to build operations outside the United States. (Originally 96, with many add’l tech. cos. joining on.)
  2. The Korematsu brief argues against the government’s specific claims that the President has “unreviewable authority” to suspend admission of aliens to this country, that that plenary power doctrine is a “relic of an odious past” (just like the “separate but equal” doctrine), and that it has no role in modern American jurisprudence. See Dkt. 20–2, at 2. Specifically, those plenary powers derive from the Chinese Exclusion Case, 130 U.S. 581 (1889), that were entirely “premised on outdated racist and nativist precepts that we now reject.” See Dkt. 20–2, at 3. America’s conception of its sovereignty now requires a modernization away frorm these race-based characterizations.
  3. The Law Professors’ brief argues that the government’s request for stay of the TRO should be denied because the EO inflicts irreparable harms upon international students and researchers, namely the inability to to travel outside of the U.S. and for fear of falling out of legal status and suffer deportation. They would be unable to attend international symposia/conference, engage in overseas field research, collaborate with colleagues in other countries, or visit family without impediments to returning. See Dkt. 22–2, at 2–5. Additionally, the brief argues that the EO violates the due process rights of nonimmigrants based upon their substantial ties to the U.S. (residency in the US for years, being in the middle of degree programs, and significant intellectual contributions). See Dkt. 22–2, at 6–9. Last, the brief argues that the EO violates the INA and the APA, because it was not promulgated through regulation, and was never vetted by key agency officials or career diplomats. See Dkt. 22–2, at 9–11.
  4. The ACLU brief focuses on the EO’s motivation of bias against Muslims, as confirmed by POTUS’s own public statements and the absence of rational justification for the categorical exclusion, as violations of the Establishment Clause and the equal protection protection principle of not favoring one religion over another. See Dkt. 24–2, at 2–3. The government’s invocation of the “plenary power” doctrine is flawed, because it is still “subject to important constitutional limitations” and that they are “subject to judicial intervention.” Id. at 4–5.
  5. The Americans United for Separation of Church and State and Southern Poverty Law Center’s brief argues that the EO discriminates against Muslims based upon their faith, that it fails both the Larson and Lemon tests, and that it therefore violates the Establishment Clause of the First Amendment of the U.S. Const. See Dkt. 26–2, at 2–4. The EO singles countries that are almost entirely Muslims for harsh legal disabilities and punishments, including exclusion, detention, and expulsion — targeting even legal U.S. residents for detention and deportation merely because of their Muslim faith. See Dkt. 26–2, at 3. Specifically, “National security is not furthered by a policy of suddenly, flatly, and universally excluding Muslims whose entry the government has already approved.” See Dkt. 26–2, at 4–5 (italics in original, bold added). The facts also belie the EO, given that people from the seven countries have killed zero (0) people in terrorist attacks in the U.S. since 1975. Id.
  6. The brief filed by HIAS, Inc. argues that the EO needlessly complicates and endangers the refugees implicated, and seeks to shed light on the history and purpose of U.S. refugee laws and requirements. The EO was executed without statutory compliance with the INA, and in derogation of the purpose of the 1980 Refugee Act. See Dkt. 27, at 4–5. The 9/11 justification for the EO is untethered from the seven countries of the EO, and there is no rational basis for any suspension of the Refugee program, because they “are already subject to an intensive investigation, which can last for as long as two years, and which includes personal interviews and biometric analyses, and vetting by the United Nations High Commission on Refugees, the National Counterterrorism Center, the FBI’s Terrorist Screening Center and the departments of State, Defense and Homeland Security.” See Dkt. 27, at 5 (emphasis added). Lifting the stay will only subject these refugees to increased vulnerability in a myriad of ways. Id.
  7. The brief filed by the States of New York, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Mexico, Oregon, Rhode Island, Vermont, Massachusetts, Pennsylvania, and Virginia, and the District of Columbia largely focuses on the effects the EO has on those States’ educational institutions, the medical staffs of those states, as well as to a lesser extent the effects on small business, and other economic harms through tax revenues, etc. Additionally, these states also raise up the enforcement of anti-discrimination laws, and the potential of uneven enforcement if the TRO were stayed by the Ninth Circuit, returning to the chaos after the EO was first signed and poorly implemented. (An amended brief was filed adding New Hampshire and North Carolina.)
  8. The brief filed by four Constitutional Law Scholars was initially preparing an amicus curiae brief for the Darweesh v. Trump №17–480 (E.D. N.Y. 2017) case, but it was made aware of this case, and in particular the Administration’s “disturbing” claim that the President’s authority was so broad that it was “unreviewable authority” by the courts, regardless of any class of citizen. Specifically, even though that authority is entitled to deference, the President’s authority is still limited by the Constitution, and there is still a critical role for the courts to assess its constitutionality. See Dkt. 43–2, at 1–3 (“The assertion of unfettered Executive authority, resting in part on congressional legislation from a 1952 statute, is breathtaking in its disruption of the procedures in place, and would authorize even what in the domestic context would be recognized as the mostly clearly unlawful invidious discrimination.”). Indeed, many of the immigration cases that undergird this determination were decided long before the Civil Rights era and beyond. See Dkt. 43–2, at 4 [citing Chinese Exclusion cases]. “In no case case since the Chinese Exclusion cases has the Supreme Court blessed the sort of discriminatory immigration rule at issue here.”
  9. The brief filed by the Anti-Defamation League argues that America needs to look towards its history in order to live up to its ideals of equality, liberty, and justice. That, on the one hand, we have lived up to those ideals at times, yet on the other hand, we have also closed our doors and compromised our ideals, most notably during the St. Louis tragedy (937 passengers of the St. Louis left Hamburg Germany fleeing Nazi persecution during WWII, only to have the US refuse their admission), Japanese internment (a racist Executive Order interning Japanese-Americans in the U.S.), and Chinese exclusion (the first federal law ever passed excluding a group of immigrants solely based on race or nationality), due to xenophobia and prejudice.
  10. The brief filed by Service Employees International Union (“SEIU”) in support of the States provides personal stories from immigrant SEIU members that are either from the impacted countries or those that have ties or connections to affected countries.
  11. The brief filed by the American Center for Law and Justice in support of the U.S. Government argues that national security justifies the EO and that the district court’s TRO was “extraordinary,” and was issued without legal or factual analysis, and that there is no classification based upon religion.
  12. The brief filed by the National Immigrant Justice Center and ASISTA in support of the States explains the additional ways the EO violates the INA, including its effects on visas for victims of human trafficking, victims of specified criminal offenses, and visa pertaining to spouses of U.S. citizens, as well as travel by admitted refugees and asylees, and highlighting specifically the violations of statutes and regulations regarding those categories.
  13. The brief filed by 11 additional law professors in support of neither party raises and explains the issue of state standing. Specifically, the law professors explain: (1) “proprietary interests”; and (2) “quasi-sovereign interests”.
  14. The brief filed by US Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center in support of the U.S. Government’s highlighting past uses of plenary powers regarding immigration, including President Carter’s Executive Order 12172, Reagan’s 1981 and 1985 exercise of 8 U.S.C. § 1182(f), President Obama’s 2011 exercise of 8 U.S.C. § 1182(f).
  15. The brief filed by Washington State Labor Council in support of the States highlighs the apologies necessary by the U.S. follow Japanese internment during WWII, the racism that undergirded the Chinese Exclusion Act and JFK’s enactment of the INA, and identifying affected union members who would suffer irreparable harms.
  16. The brief filed by The Jewish Foundation in support of the States argues that there is no rational basis for the EO, and that it is instead motivated by religious discrimination. The brief then argues against the resurrection of discredited rationales from Hirabayashi and Korematsu that national security interests render the EO unreviewable. These decisions, like those supporting Jim Crow laws and gender discrimination, should be overturned.
  17. The brief filed by the American Immigration Council, National Immigration Project of the National Lawyers Guild, Northwest Immigrant Rights Project, Human Rights First, KIND (Kids in Need of Defense), and the Tahirih Justice Center in support of the States argues that: (1) this appeal is inappropriate because TROs are generally non-appealable; (2) the EO is subject to judicial review; and (3) there are incalculable and irreparable harms under the EO.
  18. The brief filed by Freedom Watch, Inc. in support of the U.S. government argues that: the status quo before the EO is untenable and overly lax; the TRO is unwarranted because the States will not prevail on the merits; the federal government’s ability to regulate immigration is nearly limitless; and that the EO targets “failed states” and a hostile nation, Iran, not a religion; and a lack of standing.
  19. The brief filed by Muslim Advocates, American Muslim Health Professionals, Islamic Medical Association of North America, Muppies, Inc., National Arab American Medical Association, and Network of Arab-American Professionals in support of the States arguing that: (1) the EO is subject to judicial review as well as constitutional limitations; and (2) the purpose of the EO is animus towards Muslims, as demonstrated by overt animus by POTUS, and a disproportionate injury to Muslims, including longtime U.S. residents.

Next Steps

Oral arguments took place on Tuesday, 2/7/17, at 3:00 p.m. PST, with each side granted 30 minutes. A ruling will follow is expected this week.

Regardless of whichever party prevails at the Ninth Circuit, however, there will almost certainly be an appeal up to the Supreme Court of the United States.

TL;DR

For those keeping count:

  • 20 States and the District of Columbia (Parties WA and MN, amici HI, NY, CA, CT, DE, IA, IL, ME, MD, NC, NH, NM, OR, RI, VE, MA, PA, VA, and DC) are involved, all in support of the district court TRO;
  • 15 amicus curiae briefs filed in support of the States;
  • 3 amicus curiae briefs filed in support of the federal government; and
  • 1 amicus curiae brief filed in support of neither party.

Updated: 2:28 p.m. PST on 2/7/17

[For a further update on the status of this case, as of 2/14/17, see the post here.]