WASHINGTON, DC 20510
As members of the Senate Judiciary Committee, we write to express concern about the
Department of Justice's ambiguous response to inquiries about the Department's role in
reviewing the legality of President Trump's recent executive orders and memoranda. On
Friday, the press reported that the Department had "no comment" when asked whether its
Office of Legal Counsel (OLC) had reviewed any of the executive orders issued by the
new Administration to date. In the vast majority of cases, the answer to this question
should be a straightforward "yes."
As you are well aware, the Department of Justice's website states that:
In addition, under Executive Order 11030 on the "preparation, presentation, filing, and
publication of Executive orders and proclamations," a president ·'shall'' submit proposed
executive orders and proclamations to both the Office of Management and Budget and
the Attorney General, who reviews the materials for both '·form and legality."
Several of the executive orders and memoranda issued this past week, including those
relating to deportation priorities and "sanctuary cities," have already been questioned by
local law enforcement officials because of their vagueness, negative impact on public
safety, and potential conflict with legal precedent. One of them has already been stayed
by a Federal court, after causing damage to families around the country and our standing
around the globe.
The American public has the right to know that the White House is following the long-
standing and sensible practice that new mandates affecting their lives and communities
have been deemed legal by the Justice Department. If, on the other hand, the
Administration has chosen to deviate from these well-established norms, the public has
the right to know that, too.
Based on our understanding, the President has issued the executive orders and
th
memoranda listed below since January 20 • Given the scope and significance of many of
• Identify which orders and memoranda listed below, or issues subsequent to the
date of this letter, were reviewed by OLC before they were issued and which
were not;
• Advise whether, to your knowledge, Executive Order 11030 remains in effect.
• For orders issued through a process that failed to comply with 1 C.F.R. Part 19,
advise what legal effect, if any, they have;
• Advise whether the procedure followed with respect to the executive orders and
memoranda listed reflects a change of Department policy or practice and describe
what the policy or practice of the Department will be going forward;
• Advise whether OLC has advised the Department of Homeland Security or any
other federal agency on the meaning of any court order staying the President's
January 27, 2017, order related to the entry of certain persons into the United
States; and
• Advise whether OLC has advised the Department of Homeland Security or any
other federal agency with respect to the legality of failing to comply with court
orders related to that executive action.
Executive Orders:
Memoranda:
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United States Senator
anne Feinstein
United States Senator
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Patrick Leahy
United States Senator
Al Franken
United States Senator
Christopher A. Coons
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Richard Blumenthal
United States Senator United States Senator
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United States Senator
v.
COUNSEL
ORDER
PER CURIAM:
parties at this very preliminary stage and are mindful that our
I. Background
and civil unrest increase the likelihood that terrorists will use
the Executive Order suspends for 120 days the United States
motion the next day, and the district court held a hearing the
and set deadlines for the filing of responsive and reply briefs
1
We have also received many amicus curiae briefs in support of
both the Government and the States.
Workers, 598 F.3d 1061, 1067 (9th Cir. 2010). This rule has
order that the TRO will remain in effect for longer than
preliminary injunction. 2
III. Standing
proceedings.
2
Our conclusion here does not preclude consideration of appellate
jurisdiction at the merits stage of this appeal. See Nat’l Indus., Inc. v.
Republic Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982).
under state law. See, e.g., Hontz v. State, 714 P.2d 1176,
1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor,
3
Our decision in Townley concerned a motion for a preliminary
v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
Executive Order for visas; it had made plans for their arrival
the right” as the third party; or when the third party is less
able to assert her own rights). Vendors, for example, “have
been uniformly permitted to resist efforts at restricting their
Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) (“It is
Cir. 1995) (citing Pierce and rejecting the argument that the
plaintiff school had no standing to assert claims of
Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996)
(citing similar authorities). As in those cases, the interests
Order but may also assert the rights of their students and
faculty members. 4
4
The Government argues that the States may not bring
rights. Even if we assume that States lack such rights, an issue we need
not decide, that is irrelevant in this case because the States are asserting
the rights of their students and professors. Male doctors do not have
personal rights in abortion and yet any physician may assert those rights
on behalf of his female patients. See Singleton, 428 U.S. at 118.
5
The States have asserted other proprietary interests and also
arguments.
566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S.
in this case.
court has ever held that courts lack the authority to review
executive action in those arenas for compliance with the
Constitution. To the contrary, the Supreme Court has
repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or
are not subject to the Constitution when policymaking in that
legitimate and bona fide reason, the courts will [not] look
6
See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954)
V. Legal Standard
United States, 272 U.S. 658, 672 (1926)). “It is instead ‘an
the proceeding; and (4) where the public interest lies.” Lair
Nken, 556 U.S. at 434). “The first two factors . . . are the
most critical,” Nken, 556 U.S. at 434, and the last two steps
are reached “[o]nce an applicant satisfies the first two
(1985); ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1073 (9th
Cir. 2015).
Process Clause.
in the TRO that the States were likely to prevail on the merits
added).
and out of the United States, and (2) the TRO applies
form of the TRO that accounts for the nation’s multiple ports
of entry and interconnected transit system and that would
1978).
Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free
a discriminatory purpose).
above.
7
Although the Government points to the fact that Congress and the
8
In addition, the Government asserts that, “[u]nlike the President,
courts do not have access to classified information about the threat posed
and maintain its confidentiality. Regulations and rules have long been
in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice
Supreme Court, and Judges of the United States Courts of Appeal and
IX. Conclusion
Protecting the Nation From Foreign Terrorist Entry Into the United States
*8977 By the authority vested in me as President by the Constitution and laws of the United States of America, including
the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and
to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby
ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping
them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of
September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa
applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-
issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from
receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11,
2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas,
or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries
due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter
the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for
admission do not intend to harm Americans and that they have no ties to terrorism.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile
attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not
support the Constitution, or those who would place violent ideologies over American law. In addition, the United States
should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence
against women, or the persecution of those who practice religions different from their own) or those who would oppress
Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit
terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.
(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National
Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate
any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the
benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National
Intelligence, shall submit to the President y8978a report on the results of the review described in subsection (a) of this
section, including the Secretary of Homeland Security's determination of the information needed for adjudications and
a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of
Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a)
of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign
nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals,
pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry
into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would
be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants
and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling
on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2,
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed
for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to
start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in
consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a
Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling
on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2,
G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary
of Homeland Security may submit to the President the names of any additional countries recommended for similar
treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation
described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis,
and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in
implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order,
a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the
Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of
Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify
individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of
causing harm subsequent to their admission. This program will include the development of a uniform screening standard
and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that
duplicate documents are not *8979 used by multiple applicants; amended application forms that include questions
aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the
applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of
society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or
not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of
National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the
President an initial report on the progress of this directive within 60 days of the date of this order,
a second report within 100 days of the date of this order, and a third report within 200 days of the
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall
suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State,
in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence,
shall review the USRAP application and adjudication process to determine what additional procedures should be taken
to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States,
and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be
admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of
this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary
of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such
additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland
Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by
individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in
the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security
shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria
as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I
have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees
in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries
of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a
case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as
refugees is in the national interest_including when the person is a religious minority in his country of nationality facing
religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting
international agreement, or when the person is already in transit and denying admission would cause undue hardship_and
it would not pose a risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b)
of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within
100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local
jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens
eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine
existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have
greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State
and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority
in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related
implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security
shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United
States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress
of the directive contained in subsection (a) of this section. The initial report shall be submitted within
100 days of the date of this order, a second report shall be submitted within 200 days of the date of
this order, and a third report shall be submitted within 365 days of the date of this order. Further,
the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and
operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program
and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of
State shall immediately expand the Consular Fellows Program, including by substantially increasing
the number of Fellows, lengthening or making permanent the period of service, and making language
training at the Foreign Service Institute available to Fellows for assignment to posts outside of their
area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly
affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to
ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity
period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a
country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State
shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively
implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation
with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-
related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or
removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related
organization, or any other national security reasons since the date of this order or the last reporting period, whichever
is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry
into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related
organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period,
(iii) information regarding the number and types of acts of gender-based violence against women, including honor
killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever
is later; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and
the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of State shall, within one year of the date of this order, provide a report on the
estimated long-term costs of the USRAP at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or
legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
*8982
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at
law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
201 7 WL 462040
2017 WL 462040
complaint seeking declaratory and injunctive relief against
W.D. Washington,
Department of Homeland Security (“DHS”), John F.
at Seattle.
Kelly, in his official capacity as Secretary of DHS, Tom
v.
“Federal Defendants”). (See Compl.) On February 1,
|
of the Executive Order of January 27, 2017, entitled
Signed 02/03/2017
“Protecting the Nation from Foreign Terrorist Entry into
18.)
I. INTRODUCTION
201 7 WL 462040
1109, 1127 (9th Cir. 2009) (citing Winter, 555 U.S. at 20).
ongoing. Accordingly, the court concludes that a TRO
U.S. at 22.
claims that would entitle them to relief; the States are likely
noted for the Winter test, the States have also established
5(c), and 5(e) of the Executive Order (as described
201 7 WL 462040
All Citations
V. CONCLUSION
Footnotes
1 An equally divided Supreme Court affirmed Texas v. United States, 809 F.3d 134, in United States v. Texas, ––– U.S.
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
No. 17-35105
EMERGENCY MOTION
UNDER CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY
AND MOTION FOR STAY PENDING APPEAL
_____________________
(1) Telephone numbers and addresses of the attorneys for the parties
As set forth more fully in the motion, the district court has entered a
concerns, which is imposing irreparable harm on the defendants and the general
elected representative responsible for immigration matters and foreign affairs; and
second-guesses the President’s national security judgment about the quantum of risk
posed by the admission of certain classes of aliens and the best means of minimizing
that risk.
February 4, 2017, of the defendants’ intent to file this motion. Service will be
ii
The defendants requested a stay from the district court on February 3, 2017,
Counsel to Defendants
iii
INTRODUCTION
conditions in certain countries due to war, strife, disaster, and civil unrest increase
the likelihood that terrorists will use any means possible to enter the United States,”
and that our Nation accordingly must take additional steps “to ensure that those
approved for admission do not intend to harm Americans and that they have no ties
to terrorism.” Executive Order: Protecting the Nation from Foreign Terrorist Entry
into the United States (Jan. 27, 2017) (Order) (Exhibit A).
Invoking his constitutional authority to control the entry of aliens into this
class of aliens” whose entry “would be detrimental to the interests of the United
States,” the President has directed a temporary 90-day suspension of entry for
the U.S. Refugee Admissions Program; and a suspension of entry of Syrian nationals
as refugees until the President determines that measures are in place “to ensure that
admission of Syrian refugees is consistent with the national interest.” Exec. Order
opinion, the Order is a lawful exercise of the political branches’ plenary control over
the admission of aliens into the United States. Louhghalam v. Trump, Civ. No. 17-
conflicts with the basic principle that “an alien seeking initial admission to the
United States requests a privilege and has no constitutional rights regarding his
Landon v. Plasencia, 459 U.S. 21, 32 (1982). It also contravenes the considered
judgment of Congress that the President should have the unreviewable authority to
suspend the admission of any class of aliens. The district court did not confront
those authorities; indeed, it gave no explanation why the State of Washington has a
high likelihood of success on the merits of its claims. And it entered the injunction
at the behest of a party that is not itself subject to the Executive Order; lacks Article
III standing or any right to challenge the denial of entry or visas to third-party aliens;
and brings a disfavored facial challenge. The injunction is also vastly overbroad—
currently have no visas; and applies nationwide, effectively overriding the judgment
of another district court that sustained the Executive Order against parallel
challenges.
immediate administrative stay pending consideration of the request for a full stay
security judgment. As the President acted well within both statutory and
has identified only speculative harms it would suffer from temporary suspension of
the entry of aliens affected by the Order, and that harm could be minimized by
expediting appeal.
BACKGROUND
et seq., as amended, Congress established the framework for deciding which aliens
may enter and remain in the United States. Congress expressly granted the President
broad discretionary authority, whenever he “finds that the entry of any aliens or of
any class of aliens into the United States would be detrimental to the interests of the
United States,” to “suspend the entry of all aliens or any class of aliens as immigrants
nationals as immigrants into the United States. See 1986 WL 796773 (Aug. 22,
1986).
constitutional authority under Article II over foreign affairs, national security, and
inherent in the executive power to control the foreign affairs of the nation.” Knauff
the Order “to protect the American people from terrorist attacks by foreign nationals
1
Presidential Proclamation 5517 (President Reagan); Exec. Order No. 12,324
(President Reagan); Exec. Order No. 12,807 (President George H.W. Bush);
Presidential Proclamation 6958 (President Clinton); Presidential Proclamation 8342
(President George W. Bush); Presidential Proclamation 8693 (President Obama);
Exec. Order No. 13,694 (President Obama); Exec. Order No. 13,726 (President
Obama).
The Order directs a number of actions in the interests of national security. Id.
review to identify the “information needed from any country * * * to determine that
[an] individual seeking [an immigration-related] benefit is who the individual claims
to be and is not a security or public-safety threat.” Id. § 3(a). The Order also directs
a process for requesting necessary information from foreign governments that do not
supply such information, and consequences for countries not providing it. See id.
§ 3(d)-(f).
While that review is ongoing, the Order suspends entry for 90 days of aliens
from seven countries previously identified as being associated with a heightened risk
enacted in 2015, modifies the visa waiver program. Pub. L. No. 114-113, 129 Stat.
2242, 2990 (2015). That program allows nationals of certain countries to enter the
United States without a visa. See 8 U.S.C. § 1187. Section 1187(a)(12) bars from
the visa waiver program any individuals who are nationals of or have recently
identified Iraq and Syria as countries of concern, and also included countries that
have been designated by the Secretary of State as sponsors of terrorism: Iran, Sudan,
concern” based on “whether the presence of an alien in the country or area increases
the likelihood that the alien is a credible threat to the national security of the United
country or area,” and “whether the country or area is a safe haven for terrorists.” 8
authority to bar from the visa waiver program individuals who had recently travelled
to Libya, Somalia, and Yemen, in an effort to ensure that the visa waiver program’s
“requirements are commensurate with the growing threat from foreign terrorist
fighters.” https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-
restrictions-visa-waiver-program.
Exceptions to the Order’s suspension of the entry of aliens from the seven
§ 3(g). The suspension of entry does not apply to lawful permanent residents of the
United States (i.e., an immigrant admitted with the privilege of residing permanently
D).
The Order also suspends for 120 days the U.S. refugee program, which is
additional procedures should be taken to ensure that those approved for refugee
admission do not pose a threat to the security and welfare of the United States.”
Order § 5(a). Once the refugee program is resumed, the Secretary of State is directed
to “make changes, to the extent permitted by law, to prioritize refugee claims made
§ 5(b). The Order contemplates the entry of a total of up to 50,000 refugees during
U.S.C. § 1182(f) until the President determines that sufficient changes have been
made to the refugee program “that admission of Syrian refugees is consistent with
C. Procedural History
The State of Washington brought this action on January 30, 2017, asserting
constitutional and statutory claims against the United States, the President, and the
Secretaries of Homeland Security and State. Complaint, R1. On the same day,
hearing on February 3, 2017. First orally, and then in a brief written order, the court
sections 3(c), 5(a)-(c), and 5(e) of the Order. Transcript 48-49 (Exhibit E); R52.
The court also denied defendants’ motion for a stay. Transcript 50.
ARGUMENT
defendants can establish (1) a strong likelihood of success on appeal; (2) a likelihood
that it will be irreparably harmed absent a stay; (3) that plaintiffs will not be
substantially harmed by a stay; and (4) public interest in a stay. See Hilton v.
temporary restraining orders are ordinarily not appealable, this Court has jurisdiction
injunctions”; “the essence of the order, not its moniker,” determines appealability.
Service Employees v. Nat’l Union of Healthcare, 598 F.3d 1061, 1067 (9th Cir.
2010). Where, as here, the “district court holds an adversary hearing and the basis
for the court’s order was strongly challenged,” and the length of the injunction (in
this case, indefinite) “exceeds the ordinary duration” of temporary restraining orders,
the merits.2 In fact, Washington lacks Article III standing, has no basis for
challenging the denial of visas or entry to third-party aliens, and has not identified
any legal defect in the Order—much less one that would justify the facial injunctive
The district court reasoned that the Washington has Article III standing
because the Order “adversely affects the States’ residents in areas of employment,
education, business, family relations, and freedom to travel,” and that these harms
“extend to the States by virtue of their roles as parens patriae of the residents living
within their borders.” R52, at 4-5. But a State cannot bring a parens patriae action
Mellon, the Supreme Court explained that “it is no part of [a State’s] duty or power
to enforce [its citizens’] rights in respect of their relations with the federal
government.” 262 U.S. 447, 478, 485-86 (1923); accord South Carolina v.
2
Because Minnesota, which was added as a plaintiff in the amended complaint,
did not move for interim injunctive relief, we address only Washington’s standing.
Regardless, the arguments apply equally to Minnesota.
The district court also reasoned that “the States themselves are harmed by
virtue of the damage that implementation of the Order has inflicted upon the
operations and missions of their public universities and other institutions of higher
learning, as well as injury to the States’ operations, tax bases, and public funds.”
R52, at.5. These attenuated and speculative alleged harms are neither concrete nor
particularized.
students and faculty members the State identifies are not prohibited from entering
the United States, and others’ alleged difficulties are hypothetical or speculative.3
That is particularly true given the Order’s waiver authority. See Executive Order
§§ 3(g), 5(e). Furthermore, any assertion of harm to the universities’ reputations and
Arkansas, 495 U.S. 149, 155 (1990). And although Washington suggested that the
Order might affect its recruitment efforts and child welfare system, it conceded that
it could not identify any currently affected state employees, nor any actual impact
on its child welfare system. See Schumacher Decl. ¶ 7, R17-5; Strus Decl., R17-6.
3
See, e.g., Second Riedinger Decl. ¶¶ 3-7, R17-2 (allegations about lawful
permanent residents, who are not impacted by the Executive Order); Boesenberg
Decl. ¶ 6, R17-3 (same); Second Riedinger Decl. ¶ 8 (asserting that certain countries
may “ban * * * U.S. travelers” in response to the Executive Order); Second
Chaudhry Decl. ¶ 8, R17-4 (alleging one faculty member may be unable to return to
10
Washington’s contentions regarding its tax base and public funds are equally
flawed. See Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (finding no standing based
on Florida’s allegation that challenged law would diminish tax base); see also, e.g.,
Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985).4
Nor does Washington have any “legally protected interest,” Arizona Christian
Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011), in the grant or denial of entry
to an alien outside the United States. The INA’s carefully reticulated scheme
provides for judicial review only at the behest of an alien adversely affected, and
even then only if the alien is subject to removal proceedings, see 8 U.S.C. § 1252.
visa (or his failure to be admitted as a refugee). Brownell v. Tom We Shung, 352
U.S. 180, 184 n.3, 185 n.6 (1956). It follows that a third party, like Washington, has
no “judicially cognizable interest,” Linda R.S. v. Richard D., 410 U.S. 614, 619
review is precluded by the INA, the relevant determinations are committed to the
4
Washington cited no case recognizing the standing of a State, which cannot
suffer “spiritual or psychological harm” or hold “religious beliefs” that could be
“stigmized,” Catholic League for Religious & Civil Rights v. City & Cty. of San
Francisco, 624 F.3d 1043, 1050-52 (9th Cir. 2010), to bring an Establishment Clause
challenge.
11
Executive’s discretion (indeed, to the President, who is not subject to the APA), and
the President’s own Article II powers over foreign affairs and national security,
mean that the President’s “authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can delegate.” Zivotofsky ex rel.
Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015); see also, e.g., Harisiades v.
Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that control over immigration
control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting
Fiallo v. Bell, 430 U.S. 787, 792 (1977)). “When Congress delegates this plenary
power to the Executive, the Executive’s decisions are likewise generally shielded
the “power to prevent the entry of any alien or groups of aliens into this country as
12
well as * * * to grant entry to such person or persons with any restriction on their
entry as he may deem to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d
739, 744 n.9 (9th Cir. 1980); accord Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d
1498, 1507 (11th Cir. 1992). “Pursuant to, and without exceeding, that grant of
discretionary authority, the President * * * suspended entry of aliens from the seven
As noted above (at p. 4), prior Presidents have repeatedly invoked this
States, the Supreme Court found it “perfectly clear that 8 U.S.C. § 1182(f) * * *
grants the President ample power to establish [by Executive Order] a naval blockade
that would simply deny illegal Haitian migrants the ability to disembark on our
shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187 (1993) (emphasis
added). And courts have repeatedly affirmed that “[d]istinctions on the basis of
nationality may be drawn in the immigration field by the Congress or the Executive.”
Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979); see also, e.g., Jean v.
Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846
(1985); Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).
13
race, sex, nationality, place of birth, or place of residence.” But this restriction does
not address the President’s authority under § 1182(f) to “suspend the entry” of aliens,
which is an entirely different act under the immigration laws. An immigrant visa
does not entitle an alien to admission to the United States, and even if an alien is
issued a valid visa, he is subject to being denied admission to this country when he
arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010).
the statute does not “limit the authority of the Secretary of State to determine the
procedures for the processing of immigrant visa applications * * *.” This establishes
that the Order is not covered by the restrictions of subsection (A), because the Order
directs a review and revision of procedures for processing of visa applications and
certain visa applications following that review. See, e.g., Order §§ 3(a), 5(a).
14
Furthermore, while the review is pending, the Secretaries of State and Homeland
Security have discretion to grant visas on a case-by-case basis. Id. §§ 3(g), 5(e).
untenable result that the United States could not suspend entry of nationals of a
country with which the United States is at war, which would raise a serious
President to determine whether “the entry of any aliens or of any class of aliens into
the United States would be detrimental to the interests of the United States,” to
suspend entry or impose such conditions of entry as the President “may deem
appropriate” for such period as “he shall deem necessary.” The President’s exercise
of this discretion “is not limited to circumstances defined in the statute,” and “the
Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla. 1991); see also
suspension of entry of certain classes of aliens was necessary at this time to protect
15
branches’ plenary constitutional authority over foreign affairs, national security, and
immigration. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)
within the province of any court, unless expressly authorized by law, to review the
Knauff, 338 U.S. at 543; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).
prospective judgment about future risks, as decisions about how best to “confront
evolving threats” are “an area where information can be difficult to obtain and the
561 U.S. 1, 34 (2010). Unlike the President, courts do not have access to classified
nations, the efforts of those organizations to infiltrate the United States, or gaps in
the vetting process. See, e.g., Al Haramain Islamic Found., Inc. v. Dep’t of Treasury,
Washington nevertheless argued that the district court should disregard the
President’s stated rationale for issuing the Executive Order because Washington
16
wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770
(1972), which held that, “when the Executive exercises” immigration authority “on
the basis of a facially legitimate and bona fide reason, the courts will [not] look
behind the exercise of that discretion[.]” Cf. Kerry v. Din, 135 S. Ct. 2128, 2140
(2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning has particular
force in the area of national security”). Here, as another district court has recognized,
the Executive Order undeniably states a facially legitimate and bona fide reason—
ensuring “the “proper review and maximum utilization of available resources for the
prevent infiltration by foreign terrorists.” Order, §§ 3(c), 5(a), (c); see Louhghalam,
Order 18-19. The Order does so in part by incorporating a list of seven countries
The more searching inquiry envisioned by the States would create substantial
motive in issuing the Order, cf. United States v. O’Brien, 391 U.S. 367, 383-84
matter”), and here even seeking an injunction running against the President himself,
17
fail. See Louhghalam, Order 8-11, 13-16. As an initial matter, “[t]he word ‘person’
in the context of the Due Process Clause of the Fifth Amendment cannot * * * be
expanded to encompass the States of the Union.” Katzenbach, 383 U.S. at 323; see
also Premo v. Martin, 119 F.3d 764, 771 (9th Cir. 1997). Nor can Washington
invoke the Fifth Amendment rights of its citizens against the federal government.
Furthermore, the vast majority of the individuals that Washington claims are
affected by the Executive Order are aliens outside the United States, but it is “clear”
that “an unadmitted and nonresident alien” “had no constitutional right of entry to
Plasencia, 459 U.S. at 32. This is fatal to Washington’s facial challenges, which
Even if the State could show a constitutional violation with respect to some
resident aliens who are outside the United States and who have no prior connection
to this country.
For the reasons explained in Louhghalam, moreover, the State cannot possibly
make that showing. Indeed, the State’s claim of animus is irreconcilable with the
18
fact that the seven countries listed in Section 3(c) of the Order are the same seven
countries that Congress and the Executive Branch identified in restricting the visa-
waiver program in 2015 and 2016, precisely because those countries are hotbeds of
terrorist activity. See pp. 5-6, supra; see also 8 U.S.C. 1187(a)(12)(D)(iii).
Washington argued in district court that Section 5(b) of the Order violates the
accommodation for refugees from each country in the refugee program, not just
those specified in sections 3(a) & (c). As a result, it does not favor Christian refugees
at the expense of Muslims, but rather is neutral with respect to religion. See
Louhghalam, Civ. No. 17-10154-NMG, Order 13 (Section 5(b) does not favor
religious minorities are more likely to face persecution than members of the
dominant religion. Cf. Cutter v. Wilkinson, 544 U.S. 709, 713 (2005) (Establishment
challenge to Section 5(b) also is not ripe, since that section does not take effect for
19
relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765
(1994). The district court’s order violates this rule by extending beyond any
immediate impact on the State’s own institutions to include private persons and
upheld the Order against challenges similar to those presented here, Louhghalam,
Order 18-19.
The balance of harms also clearly favors a stay pending this Court’s expedited
First, the district court’s order contravenes the considered national security
judgment of the President that the admission of certain classes of aliens at this time
to the United States, under the existing screening and visa-issuance procedures, is
not in the national interest. “‘[N]o governmental interest is more compelling than
the security of the Nation.’” Jifry v. FAA, 370 F.3d 1174, 1183 (D.C. Cir. 2004)
(quoting Haig v. Agee, 453 U.S. 280, 307 (1981)). “[T]he Government’s interest
20
national security threat posed by a class of aliens. A reviewing court would not be
error in assessing risk. Cf. Oryszak v. Sullivan, 576 F.3d 522, 525-26 (D.C. Cir.
2009) (“Egan teaches plainly that review of the breadth of [the margin of error
itself constitutes irreparable injury. See, e.g., Adams v. Vance, 570 F.2d 950, 954
(D.C. Cir. 1978) (vacating preliminary injunction that directed action by the
Secretary of State in foreign affairs, which “deeply intrude[d] into the core
Legalization Assistance Project, 510 U.S. 1301, 1306 (1993) (O’Connor, J., in
21
the Government”); Schweiker v. McClure, 452 U.S. 1301, 1303 (1981) (Rehnquist,
the legal effect of the public’s chosen representative. Cf. New Motor Vehicle Bd. v.
Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)
United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001)
(recognizing that, in assessing the public interest, a court must heed “the judgment
has struck”).
the Executive Branch to treat non-resident aliens’ visas as valid and potentially
would result in their admission into the United States, could cloud the clear legal
and factual distinction between their present status as inadmissible aliens not
22
lawfully present in the United States, and their desired status as aliens who were
In contrast, the State has not shown that it faces irreparable harm during the
Given the substantial harms posed by the district court’s order, defendants
also respectfully request that this Court enter an immediate administrative stay
CONCLUSION
For the foregoing reasons, defendants respectfully request that the Court
Defendants also request that the Court enter a stay pending appeal of the district
23
Respectfully submitted,
24
CERTIFICATE OF SERVICE
I hereby certify that on February 4, 2017, I filed the foregoing motion with
the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system. All participants in the case are registered
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Motion complies with the type-volume
complies with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using
EXHIBIT A
PageID 10
125
#: 22
EXECUTIVE ORDER
- - - - - - -
follows:
PageID 10
125
#: 23
terrorism.
States cannot, and should not, admit those who do not support
or sexual orientation.
PageID 10
125
#: 24
travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) .
60 days of notification.
C-2 visas for travel to the United Nations, and G-1, G-2, G-3,
treatment.
PageID 10
125
#: 25
this order, a second report within 100 days of the date of this
order, and a third report within 200 days of the date of this
order.
for Fiscal Year 2017. (a) The Secretary of State shall suspend
PageID 10
125
#: 26
date that is 120 days after the date of this order, the
and thus suspend any such entry until such time as I have
1182(f) , I hereby proclaim that the entry of more than 50, 000
interests of the United States, and thus suspend any such entry
PageID 10
125
#: 27
100 days of the date of this order and shall submit a second
implementing memoranda.
PageID 10
125
#: 28
State shall adj ust the visa validity period, fee schedule, or
PageID 10
125
#: 29
appropriations.
(c) This order is not intended to, and does not, create
PageID 125
10
#: 30
DONALD J. TRUMP
# # #
EXHIBIT B
(Feb. 3, 2017)
District of Massachusetts
Plaintiffs, )
) 17-10154-NMG
Defendants. )
GORTON, J.
-1-
I. Background
A. The Parties
-2-
William Mohalley, the Boston Field Director of the CPB, and the
-3-
§ 3(c). The EO also suspends, for 120 days, the United States
persecution
Id.
-- ----
-4-
appropriate.
8 U.S.C. § 1182(f).
D. Procedural History
A. Legal Standard
interest. Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st
-5-
(D. Mass. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 350, n.1
Inc., 805 F.2d 23, 26 (1st Cir. 1986). Ultimately, the issuance
Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-9 (1st Cir.
2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News
B. Application
permanent residents
-6-
permanent residents.
the lawful entry of the alien into the United States after
Holder, 556 U.S. 257, 263 (2012) (explaining that Congress made
absent from the United States for 180 days or more. See id.; 8
U.S.C. § 1101(a)(13)(c).
-7-
and thus the Court will address the merits of their claims for
injunctive relief.
Mathews v. Diaz, 426 U.S. 67, 77); see also Yick Wo v. Hopkins,
-8-
entered the United States and those who are outside of it. See
judicial control.” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 395 (3d
United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). Federal
-9-
Offices).
-10-
review.
U.S. at 225.
-11-
Clause challenge.
(2014)).
Church & State, Inc., 454 U.S. 464, 485-86 (1982) (“They fail to
-12-
removed)).
States. Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990).
-13-
(2d Cir. 1990); see also Legal Assistance for Vietnamese Asylum
1349, 1354 (D.C. Cir. 1997) (holding that aliens “may not assert
F.2d 471, 477 (7th Cir. 1981) (determining there is “no vested
-14-
The plaintiffs who hold F-1 Visas, Ms. Renani and Ms.
Moreover, they submit that they fear leaving the country because
had been. Assuming their visas have been revoked, the F-1
-15-
apply to visas and the F-1 plaintiffs are not currently subject
this time.
claim
-16-
bridge was not subject to the APA because he had the authority
§ 535 et seq.).
SprintCom, Inc., 287 F.3d 1, 13-14 (1st Cir. 2002), the Court
IV.
408 U.S. 753, 764, 770 (1972), explained that a denial of a visa
-17-
bona fide reason” for denying the alien’s visa request. In such
applicant.
Id. at 770.
Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988), and in Adams
v. Baker, 909 F.2d 643 (1st Cir. 1990). That Court concluded in
individual who had been denied a visa fit within the statutory
-18-
bad faith” could render a decision not bona fide, that is not
F.3d 24, 26-27 (1st Cir. 2007), the potential for irreparable
-19-
sides. The rich immigrant history of the United States has long
When the four factors that the Court must consider before
-20-
ORDER
order that was entered on January 29, 2017 (Docket No. 6).
So ordered.
Nathaniel M. Gorton
-21-
EXHIBIT C
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9
STATE OF WASHINGTON, et al., CASE NO. Cl 7-0141JLR
10
Plaintiffs, TEMPORARY RESTRAINING
11 ORDER
v.
12
DONALD J. TRUMP, et al.,
13
Defendants.
14
I. INTRODUCTION
15
Before the court is Plaintiffs State of Washington and State of Minnesota's
16
(collectively, "the States") emergency motion for a temporary restraining order ("TRO").
17
(TRO Mot. (Dlct. ## 3, 19 (as amended)).) The court has reviewed the motion, the
18
complaint (Compl. (Dkt. # 1)), the amended complaint (FAC (Dkt. # 18)), all the
19
submissions of the parties related to the motion, the relevant portions of the record, and
20
the applicable law. In addition, the court heard the argument of counsel on February 3,
21
II
22
ORDER-1
1 2017. (See Min. Entry (Dkt. # 51).) Having considered all of the foregoing, the court
5 declaratory and injunctive relief against Defendants Donald J. Trump, in his official
6 capacity as President of the United States, the United States Department of Homeland
7 Security ("DHS"), John F. Kelly, in his official capacity as Secretary ofDHS, Tom
8. Shannon, in his official capacity as Acting Secretary of State, and the United States of
11 plaintiff. (See FAC.) The States seek declaratory relief invalidating portions of the
12 Executive Order of January 27, 2017, entitled "Protecting the Nation from Foreign
13 Terrorist Entry into the United States" ("Executive Order") (see FAC Ex. 7 (attaching a
14 copy of the Executive Order)), and an order enjoining Federal Defendants from enforcing
15 those same portions of the Executive Order. (See generally FAC at 18.)
16 The States are presently before the court seeking a TRO against Federal
17 Defendants. (See generally TRO Mot.) The purpose of a TRO is to preserve the status
18 quo before the court holds a hearing on a motion for preliminary injunction. See Granny
19 Goose Foods, Inc. v. Bhd. Of Teamsters & Auto Truck Drivers Local No. 70 ofAlameda
20 City, 415 U.S. 423,439 (1974); Am. Honda Fin. Corp. v. Gilbert Imports, LLC, No.
21 CV-13-5015-EFS, 2013 WL 12120097, at *3 (E.D. Wash. Feb. 22, 2013) ("The purpose
22 //
ORDER-2
1 of a TRO is to preserve the status quo until there is an opportunity to hold a hearing on
2 the application for a preliminary injunction .... ") (internal quotation marks omitted).
3 Federal Defendants oppose the States' motion. (See generally Resp. (Dkt. # 50).)
5 As an initial matter, the court finds that it has jurisdiction over Federal Defendants
6 and the subject matter of this lawsuit. The States' efforts to contact Federal Defendants
7 reasonably and substantially complied with the requirements of Federal Rule of Civil
8 Procedure 65(b). See Fed. R. Civ. P. 65(b). Indeed, Federal Defendants have appeared,
9 argued before the court, and defended their position in this action. (See Not. of App.
11 The standard for issuing a TRO is the same as the standard for issuing a
12 preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
13 U.S. 1345, 1347 n.2 (1977). A TRO is "an extraordinary remedy that may only be
14 awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat.
15 Res. Def Council, Inc., 555 U.S. 7, 24 (2008). "The proper legal standard for
17 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of
18 preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an
19 injunction is in the public interest."' Stormans, Inc. v. Selecky, 586 F .3d 1109, 1127 (9th
22 questions going to the merits were raised and the balance of the hardships tips sharply in
ORDER-3
1 the plaintiffs favor," thereby allowing preservation of the status quo when complex legal
2 questions require further inspection or deliberation. All. for the Wild Rocldes v. Cottrell,
3 632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the "serious questions" approach
4 supports the court's entry of a TRO only so long as the plaintiff also shows that there is a
5 likelihood of irreparable injury and that the injunction is in the public interest. Id. at
6 113 5. The moving party bears the burden of persuasion and must make a clear showing
8 The court finds that the States have satisfied these standards and that the court
9 should issue a TRO. The States have satisfied the Winter test because they have shown
10 that they are likely to succeed on the merits of the claims that would entitle them to relief;
11 the States are likely to suffer irreparable harm in the absence of preliminary relief; the
12 balance of the equities favor the States; and a TRO is in the public interest. The court
13 also finds that the States have satisfied the "alternative" Cottrell test because they have
14 established at least serious questions going to the merits of their claims and that the
15 balance of the equities tips sharply in their favor. As the court noted for the Winter test,
16 the States have also established a likelihood of irreparable injury and that a TRO is in the
17 public interest.
18 Specifically, for purposes of the entry of this TRO, the court finds that the States
19 have met their burden of demonstrating that they face immediate and irreparable injury as
20 a result of the signing and implementation of the Executive Order. The Executive Order
22 family relations, and freedom to travel. These harms extend to the States by virtue of
ORDER-4
1 their roles as parens patriae of the residents living within their borders. In addition, the
2 States themselves are harmed by virtue of the damage that implementation of the
3 Executive Order has inflicted upon the operations and missions of their public
4 universities and other institutions of higher learning, as well as injury to the States'
5 operations, tax bases, and public funds. These harms are significant and ongoing .
.6 Accordingly, the court concludes that a TRO against Federal Defendants is necessary
7 until such time as the court can hear and decide the States' request for a preliminary
8 injunction.
16 (c) Enforcing Section 5(b) of the Executive Order or proceeding with any
19 (e) Enforcing Section 5(e) of the Executive Order to the extent Section 5(e)
22 Sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order (as described in
ORDER-5
1 the above paragraph) at all United States borders and ports of entry pending
2 further orders from this court. Although Federal Defendants argued that any
3 TRO should be limited to the States at issue (see Resp. at 30), the resulting
6 instruction that 'the immigration laws of the United States should be enforced
7 vigorously and uniformly."' Texas v. United States, 809 F.3d 134, 155 (5th
8 Cir. 2015) (footnotes omitted) (quoting U.S. CONST. art. I,§ 8, cl. 4
9 (emphasis added) and Immigration and Reform Control Act of 1986, Pub. L.
1
10 No. 99-603, § 115(1), 100 Stat. 3359, 3384 (emphasis added)).
12 4. Finally, the court orders the parties to propose a briefing schedule and noting
13 date with respect to the States' motion for a preliminary injunction no later
14 than Monday, February 6, 2017 at 5:00 p.m. The court will promptly schedule
17 v. CONCLUSION
18 Fundamental to the work of this court is a vigilant recognition that it is but one of
19 three equal branches of our federal government. The work of the court is not to create
20 policy or judge the wisdom of any particular policy promoted by the other two branches.
21
1
An equally divided Supreme Court affirmed Texas v. United States, 809 F.3d 134, in
22 United States v. Texas, --- U.S.----, 136 S. Ct. 2271 (2016) (per curiam).
ORDER-6
1 That is the work of the legislative and executive branches and of the citizens of this
2 country who ultimately exercise democratic control over those branches. The work of the
3 Judiciary, and this court, is limited to ensuring that the actions taken by the other two
4 branches comport with our country's laws, and more importantly, our Constitution. The
5 narrow question the court is asked to consider today is whether it is appropriate to enter a
6 TRO against certain actions taken by the Executive in the context of this specific lawsuit.
7 Although the question is narrow, the court is mindful of the considerable impact its order
8 may have on the parties before it, the executive branch of our government, and the
9 country's citizens and residents. The court concludes that the circumstances brought
10 before it today are such that it must intervene to fulfill its constitutional role in our tripart
11 government. Accordingly, the court concludes that entry of the above-described TRO is
14
JAMES L. ROBART
15 United tates District Judge
16
17
18
19
20
21
22
ORDER-7
EXHIBIT D
WASHINGTON
February 1, 2017
SUBJECT: Authoritative Guidance on Executive Order Entitled “Protecting the Nation from
Foreign Terrorist Entry into the United States” (Jan. 27, 2017)
Section 3(c) of the Executive Order entitled “Protecting the Nation from Foreign Terrorist
Entry into the United States” (Jan. 27, 2017) suspends for 90 days the entry into the United States
of certain aliens from countries referred to in section 217(a)(12) of the Immigration and Nationality
Act (INA), 8 U.S.C. 1187(a)(12). Section 3(e) of the order directs the Secretary of Homeland
Security, in consultation with the Secretary of State, to submit to the President a list of countries
recommended for inclusion on a Presidential proclamation that would prohibit the entry of certain
foreign nationals from countries that do not provide information needed to adjudicate visas,
I understand that there has been reasonable uncertainty about whether those provisions
apply to lawful permanent residents of the United States. Accordingly, to remove any confusion,
I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately
convey this interpretive guidance to all individuals responsible for the administration and
implementation of the Executive Order.
EXHIBIT E
(Feb. 3, 2017)
1
UNI TED STATES DI STRI CT COURT
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WESTERN DI STRI CT OF WASHI NGTON AT SEATTLE
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_____________________________________________________________
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STATE OF MI NNESOTA,
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Pl ai nti ffs,
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) February 3, 201 7
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v.
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) MOTI ON FOR
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DONALD TRUMP, i n hi s
) TEMPORARY
offi ci al capaci ty as
) RESTRAI NI NG ORDER
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Presi dent of the Uni ted
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States; U. S. DEPARTMENT OF
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HOMELAND SECURI TY; JOHN F.
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KELLY, i n hi s offi ci al
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capaci ty as Secretary of the
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Securi ty; TOM SHANNON, i n
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hi s offi ci al capaci ty as
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Acti ng Secretary of State;
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AMERI CA,
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Defendants.
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_____________________________________________________________
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VERBATI M REPORT OF PROCEEDI NGS
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UNI TED STATES DI STRI CT JUDGE
_____________________________________________________________
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APPEARANCES:
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For the Pl ai nti ffs: Noah Purcel l
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Assi stant Attorneys General
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800 Fi fth Avenue, Sui te 2000
Seattl e, WA 981 04
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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Jacob Campi on
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Mi nnesota
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St. Paul , MN 551 01
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John Tyl er
Tri al Attorneys
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U. S. Department of Justi ce
Ci vi l Di vi si on
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Federal Programs Branch
20 Massachusetts Avenue, NW
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Washi ngton, DC 20530
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Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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THE CLERK: Case No. C1 7- 1 41 , State of Washi ngton
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versus Donal d J. Trump. Counsel , pl ease make your
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appearances for the record.
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MR. PURCELL: Noah Purcel l for the State of
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Washi ngton, Your Honor.
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MS. MELODY: I ' m Col l een Mel ody, al so for the state.
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MR. CAMPI ON: I ' m Jacob Campi on, I ' m an Assi stant
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Attorney General for the State of Mi nnesota.
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THE COURT: Wel come.
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MS. BENNETT: Good afternoon, Your Honor, Mi chel l e
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Bennett from the Department of Justi ce for the defendants.
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And wi th me i s my col l eague, al so from the Department of
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Justi ce, John Tyl er.
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THE COURT: Thank you. Counsel , wel come.
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A coupl e of housekeepi ng matters to attend to. We are
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schedul ed to conduct thi s heari ng between 2: 30 and 4 o' cl ock.
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I ' m goi ng to have some very bri ef housekeepi ng matters at the
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start, of whi ch I ' ve al ready used ei ght of my ten al l otted
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mi nutes. The state wi l l go next. I wi l l tel l you that I ' ve
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gi ven, i n effect, 30 mi nutes to each si de. I f the state
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wi shes, they can reserve some of thei r ti me for rebuttal .
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They' re goi ng fi rst. The federal government i s goi ng second.
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Your prepared remarks, whi ch I ' m sure are al l very
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thoughtful and qui te hel pful , are goi ng to get swal l owed by
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questi ons, because I have questi ons that are essenti al to our
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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resol uti on of thi s case and I need to get those answered. So
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be prepared for pretty much an i nterrupti on from the start.
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And at around 3: 45, havi ng fol l owed the di rect
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presentati ons, and rebuttal i f the state has ti me l eft,
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you' re goi ng to hear from the court. I t' s my i ntenti on to
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oral l y rul e from the bench but i n very concl usory terms. And
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we wi l l get a wri tten order to fol l ow, so that i f you want to
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have the Ni nth Ci rcui t grade my homework, you' l l have
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somethi ng that you can get on fi l e there promptl y.
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So, that wi l l be the order of the day. And I ' m goi ng to
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hear from the state fi rst, pl ease.
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Mr. Purcel l , why don' t we do one other i tem. Techni cal l y
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the moti on that' s before me started off as Docket 3, whi ch
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was excl usi vel y the State of Washi ngton, and i s now Docket
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1 9, whi ch i s both the states of Washi ngton and Mi nnesota.
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We' ve al so had a seri es of requests to fi l e ami cus bri efs,
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and I i ntend to grant those. So I ' m granti ng Docket 26, the
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ACLU; Docket 42, the Servi ce Empl oyees Uni on; Docket 45,
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ami cus fi l ed by the Ami cus Law Professors. Sounds l i ke the
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Three Ami gos. Let' s see, Docket 46, I may have menti oned, i s
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the Washi ngton State Labor Counci l . And, fi nal l y, Docket 48,
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whi ch i s the ami cus, Ameri cans Uni ted For Separati on of
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Church and State. Those moti ons are granted.
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Pl ease note that i t' s not a moti on for i nterventi on, i t' s
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si mpl y authori zati on to fi l e the ami cus bri ef i n thi s
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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parti cul ar questi on.
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Mr. Purcel l .
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MR. PURCELL: Thank you, Your Honor. Good afternoon.
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I n the weeks si nce Presi dent Trump si gned the Executi ve
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Order at i ssue here, si x federal j udges around the country
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have enj oi ned or stayed parts of i t i n response to acti on by
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parti cul ar pl ai nti ffs, fi ndi ng a l i kel i hood of success on the
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meri ts of the chal l enges. The states of Washi ngton and
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Mi nnesota are aski ng you to do the same here today and to
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enj oi n the parts of the order that we chal l enge.
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The order i s i l l egal and i s causi ng seri ous i mmedi ate
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harms to our states, to our state i nsti tuti ons, and to our
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peopl e, and enj oi ni ng the order i s overwhel mi ngl y i n the
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publ i c i nterest. So, you' re fami l i ar, of course, wi th the
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standard for a temporary restrai ni ng order, I won' t waste
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your ti me.
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THE COURT: You can di spense wi th that.
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MR. PURCELL: I want to fi rst address the l i kel i hood
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of success on the meri ts, i ncl udi ng the threshol d i ssues that
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the government has rai sed, i ncl udi ng standi ng, deference to
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nati onal securi ty i nterests, and the faci al versus as- appl i ed
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nature of the chal l enge.
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THE COURT: Wel l , l et me try and derai l you here.
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MR. PURCELL: Sure.
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THE COURT: I ' d l i ke to take thi s i n terms of equal
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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protecti on fi rst.
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MR. PURCELL: Okay.
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THE COURT: And, i n parti cul ar, how does the equal
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protecti on cl ai m appl y to al l of the order, whi ch i s the
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1 20- day- part found i n paragraph or Secti on 5A. How does thi s
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ban di scri mi nate i n any way, or vi ol ate equal protecti on,
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when i t' s an across- the- board ban?
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MR. PURCELL: You' re tal ki ng about as to refugees?
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So, our cl ai m about refugees i s pri mari l y that i t i s
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rel i gi ousl y moti vated di scri mi nati on, and that the order i s,
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i n l arge part, moti vated by rel i gi ous ani mus. So that
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doesn' t requi re us to show that everyone harmed by the order
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i s of a parti cul ar fai th, i t j ust requi res us to show that
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part of the moti vati on for i ssui ng the order was rel i gi ous
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di scri mi nati on.
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THE COURT: Then I ' m goi ng to try to put words i n
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your mouth. Are you tel l i ng me, then, that you are not
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maki ng an equal protecti on chal l enge to the refugee ban?
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MR. PURCELL: I woul d say, Your Honor, that we have a
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- - I woul d say the focus there i s on the rel i gi ous
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di scri mi nati on aspect.
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THE COURT: We' re goi ng to get there next.
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MR. PURCELL: Okay. Woul d you l i ke me to address
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that further?
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THE COURT: No. Let' s move on to my second questi on
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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on equal protecti on, then.
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MR. PURCELL: Okay.
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THE COURT: Do refugees or vi sa hol ders that have
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never physi cal l y entered the country have equal protecti on
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ri ghts under the consti tuti on?
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MR. PURCELL: Your Honor, that i s not the focus of
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our cl ai m. I thi nk the answer i s probabl y no. But they do
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have ri ghts to some consti tuti onal protecti ons. And
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certai nl y thei r fri ends and fami l y who are here - - and we' re
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j ust tal ki ng about refugees now, not al i ens, for exampl e, who
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mi ght have been sponsored by a uni versi ty or somethi ng l i ke
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that to come here.
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THE COURT: Ri ght.
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MR. PURCELL: Our cl ai m i s that - - our cl ai m i s
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pri mari l y focused on the peopl e who are here or have been
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here and l eft, thei r fami l i es, thei r empl oyers and the
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i nsti tuti ons here.
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THE COURT: Al l ri ght. Has any court ever set asi de
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an i mmi grati on l aw or regul ati on on equal protecti on grounds
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based on rati onal revi ew? I understand i t' s not the
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centerpi ece, but you' ve pl ed i t and so you' re goi ng to get
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questi oned about i t.
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MR. PURCELL: We di d pl ead i t, and that' s j ust fi ne,
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Your Honor. I was pl anni ng to start thi s morni ng wi th due
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process - - or thi s afternoon - - but equal protecti on i s j ust
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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fi ne.
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I am not aware of an i mmi grati on order bei ng set asi de on
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equal protecti on grounds. On the other hand, I ' m not aware
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of any Executi ve Order qui te l i ke thi s one, that there' s so
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much evi dence, before there' s even been any di scovery, that
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i t was moti vated by ani mus, rel i gi ousl y targeted, and j ust
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utterl y di vorced from the stated purposes of the order. And
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I ' m happy to tal k about that more i n terms of - - the
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government i s aski ng for an extraordi nary l evel of deference
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here, essenti al l y sayi ng that you can' t real l y l ook at what
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were the real moti ves for the order; you can' t test i ts
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l egal i ty. And we j ust thi nk that' s wrong, l egal l y and
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factual l y.
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And i f you' l l spare me for j ust a mi nute, i ndul ge me for
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j ust a mi nute and l et me - - there' s three - - there' s a l egal
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poi nt and a factual poi nt. The l egal poi nt i s courts often
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revi ew executi ve acti on that has to do wi th nati onal securi ty
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for consti tuti onal vi ol ati ons. I f you l ook at cases l i ke
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Hamdi, Hamdan, Boumediene, the Supreme Court routi nel y
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revi ews - - you know, those were cases i nvol vi ng enemy
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combatants bei ng hel d offshore. Here we have a case that
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l argel y i nvol ves peopl e who have been here, l ong- ti me
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resi dents who sti l l l i ve here and have l ost ri ghts. And
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we' re aski ng the court to revi ew that cl ai m.
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They al so suggest, Your Honor, at page 21 to 22 of thei r
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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bri ef, based on a case cal l ed Kl eindienst and Kerry v. Din,
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that you can' t sort of l ook behi nd the stated purposes of the
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order. They say that i f the Presi dent gi ves a faci al l y
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l egi ti mate and bona fi de reason for excl udi ng an al i en, the
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court wi l l not l ook behi nd that reason.
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But there' s two fundamental probl ems wi th that argument,
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Your Honor. Fi rst of al l , those cases deal t wi th the
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Presi dent' s power to excl ude al i ens who were not here, had
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not been here, and had no ri ght to come back. That i s not
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thi s case, where we have a case i nvol vi ng peopl e who have
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been here, have ri ghts to remai n here and ri ghts to return.
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And i n Justi ce Kennedy and Al i to' s concurri ng opi ni on i n
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that Kerry v. Din case, whi ch i s a control l i ng opi ni on, they
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hel d that they woul d l ook behi nd stated moti ves, even for
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excl usi on of someone who had never been here, i f the
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pl ai nti ff pl ausi bl y al l eged wi th suffi ci ent parti cul ari ty an
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affi rmati ve showi ng of bad fai th. And that' s at 21 41 of the
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Din opi ni on. And the Ni nth Ci rcui t endorsed that standard i n
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the Cardenas opi ni on, 826 F. 3d, 1 1 64.
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THE COURT: Wel l , l et me stop because we' l l keep i n
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thi s area.
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MR. PURCELL: Okay.
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THE COURT: Do you not see some di sti ncti on between
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el ecti on campai gn statements and then subsequentl y an
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el ecti on and then an Executi ve Order whi ch i s i ssued wi th
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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comment at the ti me the Executi ve Order i s i ssued? I t seems
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to me that i t' s a bi t of a reach to say: The Presi dent i s
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cl earl y anti - Musl i m or anti - I sl am, based on what he sai d i n
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New Hampshi re i n June.
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MR. PURCELL: Wel l , Your Honor, i t mi ght go to the
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wei ght to gi ve the evi dence, I suppose. But I don' t thi nk
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i t' s sort of off the tabl e, especi al l y gi ven that we' re onl y
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a week i nto - - wel l , two weeks now, I suppose, but the order
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was i ssued a week after the campai gn - - wel l , after the
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Presi dent took offi ce.
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THE COURT: I naugurati on.
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MR. PURCELL: After the i naugurati on, I ' m sorry. So
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i t' s not as though those are compl etel y i rrel evant. And
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moreover - - and, agai n, thi s i s before any di scovery - - we
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have the Presi dent' s advi sor sayi ng on nati onal tel evi si on
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that, you know, the Presi dent asked hi m to come up wi th a
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Musl i m ban - - thi s was after the el ecti on - - asked hi m to
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come up wi th a Musl i m ban i n a way that woul d make i t l egal .
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And that that' s what they di d.
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THE COURT: Does the Executi ve Order menti on the word
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" I sl ami c" or " Musl i m?" Let' s stay on rel i gi ous grounds.
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MR. PURCELL: No, i t does not, Your Honor. I t does
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not. But when we' re argui ng about rel i gi ousl y moti vated
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targeti ng, agai n, the burden i s not to prove that i t affects
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every si ngl e person of the I sl ami c fai th. The burden i s to
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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prove that a desi re to di scri mi nate based on rel i gi on was one
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moti vati ng factor i n the adopti on of the order.
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And, agai n, we' re at the pl eadi ng stage, four days after
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havi ng fi l ed our compl ai nt, no di scovery, and there' s al ready
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an overwhel mi ng amount of evi dence to suggest that that' s the
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case, that i t was, at l east i n part, moti vated by rel i gi on.
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Goi ng back bri efl y j ust to the nati onal securi ty. Part of
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the evi dence of that, Your Honor, i s that the ti e to the
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stated purpose of nati onal securi ty i s so tenuous here. I
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mean, the Presi dent apparentl y had not deci ded whether the
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order appl i ed to l awful permanent resi dents before i t was
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i ssued. And there' s 500, 000, roughl y 500, 000 l awful
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permanent resi dents from these seven l i sted countri es i n the
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Uni ted States. Ei ther those peopl e are an enormous threat to
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our safety or they' re not. And they' ve changed thei r mi nd
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about that fi ve ti mes si nce Fri day. You know, fi rst they
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sai d that i t di d appl y to them, and many of those peopl e were
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excl uded from returni ng to the country. Then the Department
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of Homel and Securi ty rei terated that i t appl i ed to them.
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Then the Secretary sai d that i t di dn' t. And then - - thi s i s
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al l i n our compl ai nt, by the way - - and then the Whi te House
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spokesperson sai d i t di d not. And then the Whi te House
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counsel has now i ssued authori tati ve gui dance, whatever that
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means, that al though there coul d have been reasonabl e
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confusi on about what the order meant, i t wasn' t meant to
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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cover those peopl e.
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So the poi nt i s, i f they were an enormous securi ty ri sk,
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you woul d thi nk that they woul d have made up thei r mi nd about
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that before i ssui ng the order.
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And the second poi nt, Your Honor - -
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THE COURT: Wel l , before we l eave that one.
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MR. PURCELL: Yeah.
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THE COURT: What do you say to the argument that the
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seven countri es that were desi gnated - - and I ' l l quote the
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l anguage - - have been desi gnated as, " Countri es the
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government of whi ch has repeatedl y provi ded support for acts
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of i nternati onal terrori sm under 8 U. S. C. 1 1 87. " Woul dn' t
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that provi de a rati onal basi s for the Executi ve Order?
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MR. PURCELL: Your Honor, that woul d provi de a cover,
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i n our vi ew, for - - that was maybe one moti vati ng factor.
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But when you l ook at the standard of provi ng a rel i gi ous
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di scri mi nati on cl ai m, agai n, you can' t j ust accept at face
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val ue the stated purposes. Especi al l y where agai n, before
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there' s even been any di scovery, there' s so much evi dence
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that i t was not targeted at the concerns stated. I mean, the
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order appl i es to i nfants, i t appl i es to seni or ci ti zens, i t
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appl i es to students and facul ty at our state uni versi ti es who
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have never been accused of any wrongdoi ng.
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The mai n poi nt I guess I ' m getti ng at here i s that the
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i dea that you j ust can' t revi ew, can' t revi ew the real
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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reasons for thi s order, or even ask whether there are real
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reasons beyond what i s stated, i s j ust not supported by the
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case l aw. So we' re aski ng you to - - the mai n poi nt i s, the
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government i s sayi ng you cannot l ook behi nd the stated
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reasons, and we' re sayi ng that you can. The case l aw doesn' t
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support that argument that they' re maki ng.
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THE COURT: Woul d you agree wi th me that i t i s onl y
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Secti on 5 that menti ons rel i gi on?
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MR. PURCELL: I t' s onl y Secti on 5 that menti ons
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rel i gi on. We woul d say i t' s not onl y Secti on 5 that i s, i n
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part, moti vated by rel i gi on.
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THE COURT: And the part of that i s thi s resumpti on
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of the refugee program after, I thi nk i t' s 90 days for that
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provi si on. Then i t says, mi nori ty - - " Practi cers of a
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mi nori ty rel i gi on i n a country. " Does your establ i shment
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cl ause cause of acti on then extend beyond Secti on 5?
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MR. PURCELL: I thi nk our establ i shment cl ause cl ai m
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i s focused on that secti on. But I thi nk that both three and
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fi ve are moti vated i n part, our al l egati on i s, by preferri ng
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one rel i gi ous vi ew over another. The Larson case that' s
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ci ted i n our bri ef makes cl ear that you don' t need to have a
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di sti ncti on between named rel i gi ons on the face of the order
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for i t to be an establ i shment cl ause vi ol ati on. I n that case
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i t di dn' t name any rel i gi ons. I t j ust set standards for how
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di fferent rel i gi ous groups woul d qual i fy for a tax exempti on.
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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And the court sai d that, combi ned wi th the effects on the
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rel i gi ous groups, was enough.
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Your Honor, I want to spend some ti me on our due process
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cl ai m.
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THE COURT: We' re goi ng to get there.
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MR. PURCELL: Okay. Excel l ent.
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THE COURT: Trust me.
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MR. PURCELL: Okay. And al so standi ng. But i f I
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coul d turn to the due process cl ai m.
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THE COURT: Wel l , before you go there, l et' s fi ni sh
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establ i shment.
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MR. PURCELL: Okay.
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THE COURT: 5( b) i sn' t i mpl emented for, I thi nk i t' s
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1 00 days.
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MR. PURCELL: Um- hum.
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THE COURT: Why shoul d I take thi s up at thi s ti me,
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as opposed to, i f you' re comi ng back on a moti on for
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prel i mi nary i nj uncti on, deal wi th i t when i t' s somewhat more
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concrete?
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MR. PURCELL: Wel l , Your Honor, we' re aski ng you to
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temporari l y restrai n what we thought was a narrow subset of
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the categori es that we thought were moti vated by these
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unconsti tuti onal - - that vi ol ated the consti tuti on. I f you
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want to have further thought about whether - - so we' re
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suggesti ng that the acti on i tsel f of banni ng the refugees,
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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and the Syri an refugees i ndefi ni tel y, and the sel ecti on of
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the countri es, was parti al l y rel i gi ousl y moti vated. I f you
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want to wai t to rul e on whether 5( b) i tsel f, and that
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favori ti sm approach goi ng forward i s a consti tuti onal
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vi ol ati on, I suppose that woul d be fi ne. We' re not - - that
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does not necessari l y requi re i mmedi ate i nj uncti on. But that
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i s evi dence, I thi nk that provi si on i s evi dence, of the
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rel i gi ous underpi nni ngs of the order.
9
THE COURT: Al l ri ght. Why don' t you move on to due
1 0
process, si nce I ' ve used up a fai r chunk of your ti me.
1 1
MR. PURCELL: So I thi nk the most obvi ous way i n
1 2
whi ch the order vi ol ates the consti tuti on i s i ts vi ol ati on of
1 3
the due process cl ause. The due process cl ause protects
1 4
everyone i n thi s country, i ncl udi ng i mmi grants. And a number
1 5
of cases make that cl ear.
1 6
THE COURT: So i s i t your posi ti on that refugees and
1 7
other al i ens who are presentl y outsi de the country are
1 8
covered by due process?
1 9
MR. PURCELL: Your Honor, the Supreme Court has sai d
20
that al i ens who are not i n the country and have never been
21
here, the onl y process they' re enti tl ed to i s what Congress
22
provi des. So we' re not - - agai n, they' re not the focus of
23
our cl ai m. The focus of our cl ai m i s on peopl e who have been
24
here and have, overni ght, l ost the ri ght to travel , l ost the
25
ri ght to vi si t thei r fami l i es, l ost the ri ght to go perform
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research, l ost the ri ght to go speak at conferences around
2
the worl d. And al so peopl e who had l i ved here for a l ong
3
ti me and happened to be overseas at the ti me of thi s order,
4
whi ch came wi th no warni ng whatsoever, and suddenl y l ost the
5
ri ght to return to the Uni ted States.
6
So there' s a seri es of cases, and we ci ted some of these
7
i n our bri ef, Your Honor, but I ' d l i ke to - - gi ven that
8
there' s onl y been a short ti me si nce the government' s fi l i ng,
9
I di rect you to cases l i ke Landon v. Pl asencia, 459 U. S. 21 .
1 0
THE COURT: You mi ght want to sl ow down a l i ttl e bi t.
1 1
MR. PURCELL: Sorry. Landon, 459 U. S. 21 , Rosenberg,
1 2
374 U. S. 449, that make very cl ear that peopl e who have l i ved
1 3
here l egal l y for some peri od of ti me and then l eave
1 4
temporari l y, are protected by the due process cl ause i n
1 5
attempti ng to return, and cannot have thei r ri ght to return
1 6
taken away wi thout some sort of process.
1 7
And that' s effecti vel y what happened here to thousands of
1 8
peopl e i n Washi ngton, i ncl udi ng hundreds of students at our
1 9
state uni versi ti es, and facul ty. They j ust overni ght, wi th
20
no process whatsoever, l ost these i mportant ri ghts that they
21
had.
22
Now, the federal government - -
23
THE COURT: A case from your l i st of cases i s
24
Katzenbach, whi ch the government ci tes extensi vel y for the
25
proposi ti on that you' ve l ost that argument.
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MR. PURCELL: Ri ght.
2
THE COURT: How do you respond to that?
3
MR. PURCELL: Wel l , they' re wrong, Your Honor, for a
4
number of reasons. Fi rst of al l , so they say we can' t ci te
5
that case because we' re a state. But our cl ai m i s not the
6
state as state, as we made cl ear i n our standi ng bri ef, our
7
cl ai m i s the state as propri etor and the state as parens
8
patriae on behal f of the peopl e of the state. So the state
9
as a propri etor, I thi nk i s the obvi ous way that that
1 0
argument of thei rs i s i ncorrect, Your Honor.
1 1
We are asserti ng the due process ri ghts on behal f of the
1 2
peopl e of the state who are harmed, and on behal f of the
1 3
state i nsti tuti ons that they attend. So, for exampl e, the
1 4
Uni versi ty of Washi ngton and Washi ngton State Uni versi ty, as
1 5
wel l as our communi ty col l eges, are arms of the state. I t' s
1 6
very cl ear under state l aw they' re arms of the state. We sue
1 7
on thei r behal f. And thei r students and facul ty are bei ng
1 8
deni ed due process ri ghts pursuant to thi s order.
1 9
And i f you l ook at cases l i ke Pierce v. Society of
20
Sisters, 268 U. S. 51 0, and the cases ci ted i n footnote three
21
of our standi ng bri ef, i t' s very cl ear that school s and
22
uni versi ti es have standi ng to bri ng chal l enges based on harms
23
to thei r students. So that' s the fi rst way i n whi ch we have
24
standi ng to bri ng a due process cl ai m.
25
Second, Katzenbach, of course, i s before Massachusetts v.
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1
EPA and before the si gni fi cant change i n parens patriae
2
standi ng that that case announced, as detai l ed i n the ami cus
3
bri ef of the l aw professors and as expl ai ned i n
4
Massachusetts v. EPA i tsel f. So the Snapp deci si on, the case
5
out of Puerto Ri co ci ted i n our bri efi ng, makes i t very cl ear
6
that states can bri ng parens patriae cl ai ms asserti ng
7
di scri mi nati on sort of causes of acti on. And then
8
Massachusetts v. EPA makes i t very cl ear that the sort of
9
Katzenbach- Mel l on l i mi tati ons on state standi ng have been
1 0
scal ed back, i f not el i mi nated al together.
1 1
THE COURT: What' s your vi ew of the Fi fth Ci rcui t
1 2
opi ni on i n United States v. Texas?
1 3
MR. PURCELL: Wel l , i t i s a strong basi s for standi ng
1 4
here as wel l . That was pri mari l y an Admi ni strati ve Procedure
1 5
Act cl ai m. And we do have an Admi ni strati ve Procedure Act
1 6
cl ai m here. We di dn' t have space or ti me to bri ef i t i n our
1 7
temporary restrai ni ng order moti on. And I shoul d say there' s
1 8
a number of cl ai ms actual l y, i n our compl ai nt, that we thi nk
1 9
we' re l i kel y to prevai l on, that we j ust di dn' t have ti me or
20
space to bri ef i n the 48 hours and 24 pages of the temporary
21
restrai ni ng order moti on.
22
And that' s one of them, Your Honor. And that case makes
23
very cl ear that the harms to the state that we' re sufferi ng
24
here are suffi ci ent to generate standi ng i n a propri etary
25
capaci ty. There the state was argui ng, essenti al l y, added
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dri ver' s l i cense costs that were sort of unspeci fi ed, the
2
exact amount. And here we have cl ai med, very cl earl y, l ost
3
tax revenue, harms to our state uni versi ti es i n terms of
4
wasted money that was spent sponsori ng peopl e to come here
5
and teach and perform research, wasted money that was spent
6
buyi ng ti ckets for peopl e who wi l l no l onger be abl e to go
7
and speak or research at conferences, a wi de range of
8
propri etary harms, Your Honor, that do suffi ce under U. S. v.
9
Texas to show standi ng.
1 0
THE COURT: Let' s go to the I NA cl ai m, and then l eave
1 1
you some ti me to actual l y tal k to me. Do states have a ri ght
1 2
of acti on under Secti on 8 U. S. C. 1 1 52 ( a) ( 1 ) ( A) ?
1 3
MR. PURCELL: Your Honor, I ' m sorry, I honestl y do
1 4
not have a good answer to that questi on. I thi nk we can
1 5
assert - - we shoul d be al l owed to assert the ri ghts of our
1 6
peopl e here as parens patriae who are harmed by
1 7
di scri mi nati on, the nati onal i ty di scri mi nati on embodi ed i n
1 8
thi s order. But the I NA - - I thi nk I woul d say our I NA cl ai m
1 9
pri mari l y suppl ements our other cl ai ms by showi ng that thi s
20
acti on, the Presi dent' s acti on here, i s not endorsed by
21
Congress. I t' s not consi stent wi th congressi onal di recti ves.
22
I t' s actual l y contrary to what Congress has sai d about how
23
these sorts of deci si ons are supposed to be made, whi ch
24
further undermi nes the federal government' s argument to
25
deference to the Presi dent' s deci si onmaki ng i n thi s context.
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THE COURT: Al l ri ght. You' ve got ten mi nutes. I
2
won' t ask you any more questi ons.
3
MR. PURCELL: Your Honor, I ' m perfectl y happy to have
4
you ask me questi ons.
5
So I guess, fi rst of al l , I want to overal l emphasi ze that
6
we have two di sti nct bases for standi ng here i n terms of our
7
propri etary i nterests, the harms to the Uni versi ty of
8
Washi ngton, Washi ngton State Uni versi ty, our other state
9
col l eges and uni versi ti es, and then our parens patriae cl ai m.
1 0
Those are real harms i n both senses.
1 1
The federal government real l y has offered no meani ngful
1 2
response to our cl ai ms of propri etary harm to the
1 3
uni versi ti es. I know they' ve cl ai med that tax harms are
1 4
i nsuffi ci ent, i n some of thei r pl eadi ng, but al l the cases
1 5
they ci te predate Massachusetts v. EPA, and they' re
1 6
i nconsi stent wi th, for exampl e, the Fi fth Ci rcui t' s approach
1 7
i n U. S. v. Texas. I f the added cost of i ssui ng dri ver' s
1 8
l i censes i s suffi ci ent to generate standi ng, there' s no
1 9
reason why the l ost revenue of l osi ng vi si tors who woul d come
20
here and spend money shoul d be i nsuffi ci ent to generate
21
standi ng. More revenue versus l ess revenue, i t' s two si des
22
of the same coi n.
23
And as to the uni versi ti es, the federal government cl ai ms
24
that these harms are " i l l usory" because most of the peopl e we
25
al l ege who wi l l be affected actual l y won' t be. But there' s
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j ust no evi dence to support that. So they say now - - agai n,
2
thei r posi ti on has changed fi ve ti mes. And I don' t mean any
3
i l l i ntent towards counsel . I know they don' t have any
4
control over thi s. But the federal government' s posi ti on
5
about what the Executi ve Order means has changed repeatedl y
6
si nce the order was i ssued. And so now they say i t protects
7
l ong- term l awful permanent resi dents or doesn' t appl y to
8
them. But that wasn' t thei r i ni ti al posi ti on. And i n any
9
event, we have hundreds of students and facul ty at our
1 0
uni versi ti es who are here on vi sas who - - agai n, overni ght - -
1 1
l ost the ri ght to travel for any number of purposes or to
1 2
return to the country.
1 3
The onl y other poi nt I ' d make, Your Honor, they make much
1 4
of the i dea that thi s i s a faci al chal l enge, we can' t show
1 5
that i t' s i l l egal i n al l appl i cati ons. And that' s i ncorrect,
1 6
Your Honor. The Ni nth Ci rcui t has repeatedl y hel d that when
1 7
- - i n anal yzi ng whether somethi ng i s a faci al or as- appl i ed
1 8
chal l enge, you l ook at whether i t' s a chal l enge to the
1 9
enti rety of the acti on or to parts of i t. And that' s cases
20
l i ke Hoye v. Oakl and, 653 F. 3d 835.
21
Here we' re chal l engi ng onl y parts of the Executi ve Order.
22
I t' s very cl ear that thi s i s an as- appl i ed chal l enge to parts
23
of the order. We don' t need to show i t' s unconsti tuti onal i n
24
every appl i cati on. I apol ogi ze for ci ti ng so many cases,
25
Your Honor, i n oral argument. I don' t normal l y do that.
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I t' s j ust that, of course, we had no opportuni ty to fi l e a
2
response i n onl y a short peri od of ti me from when they fi l ed.
3
And the l ast thi ng I ' d say, Your Honor, for now - - and
4
then I ' d j ust l i ke to reserve the remai nder of my ti me - - i s
5
that the establ i shment cl ause. The establ i shment cl ause, one
6
of the ori gi nal purposes of i t was to protect the states
7
agai nst the federal government choosi ng a nati onal rel i gi on
8
and i mposi ng i t on the states. So the i dea that the state
9
woul d not have standi ng to chal l enge a nati onal government - -
1 0
wel l , the Presi dent, anyway, expressi ng a preference i s j ust
1 1
- - i t makes no sense.
1 2
And, agai n, you know, I can' t ci te you to a case where a
1 3
state sued the federal government over an establ i shment cause
1 4
vi ol ati on, but I al so can' t ci te you to an Executi ve Order
1 5
ever before qui te l i ke thi s one or the ci rcumstances that we
1 6
are faci ng today.
1 7
So I ' d l i ke to reserve the remai nder of my ti me and j ust
1 8
concl ude by sayi ng, the questi on i s l i kel i hood of success,
1 9
i rreparabl e harm, and the bal ance of equi ti es. We feel we' ve
20
shown a strong l i kel i hood of success, as the other courts
21
have rul ed. And we' d ask you to enj oi n thi s order
22
temporari l y. Thank you, Your Honor.
23
THE COURT: Ms. Bennett, are you argui ng?
24
MS. BENNETT: Yes, Your Honor.
25
THE COURT: Thank you for comi ng. I thought your
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1
bri ef was extremel y wel l done. I t was hel pful .
2
MS. BENNETT: Thank you, Your Honor.
3
May i t pl ease the court. Your Honor, for some of the
4
reasons we menti oned we thi nk we have very good reasons why
5
the state i s not l i kel y to prevai l on the meri ts. But I ' d
6
l i ke to start wi th standi ng, whi ch I thi nk di sti ngui shes thi s
7
case from some of the other cases that have been fi l ed around
8
the country.
9
THE COURT: Wel l , l et' s concentrate on standi ng.
1 0
Tel l me why you thi nk that the Fi fth Ci rcui t i s wrong, i n
1 1
what seemed to be fai rl y margi nal ci rcumstances, and they
1 2
strongl y come out, wi thout hesi tati on or doubt, to fi nd
1 3
standi ng?
1 4
MS. BENNETT: Wel l , Your Honor, we do di sagree wi th
1 5
the Fi fth Ci rcui t' s deci si on. Of course we al so thi nk that
1 6
case woul d be di sti ngui shabl e. We di sagree wi th the deci si on
1 7
because we do thi nk i t has to be a parti cul ari zed i mpact on
1 8
the state. I n United States v. Texas, the court found that
1 9
the state i tsel f had i nj ury. I t wasn' t an i nj ury i n i ts
20
parens patriae capaci ty. And i t was basi cal l y that the - -
21
THE COURT: Let me stop you. I n the State of
22
Washi ngton, and I can' t speak to Mi nnesota, but both the
23
Uni versi ty of Washi ngton and Washi ngton State are consi dered
24
parts of the state government. And they' ve ci ted a l i tany of
25
di rect consequences, damages to them. That' s compared to,
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1
what, the $1 3. 40 i n Texas for i ssui ng a dri ver' s l i cense?
2
MS. BENNETT: Wel l , Your Honor, i n Texas i t was a
3
monetary i nj ury, ri ght? Here the i nj uri es that the state
4
tal ks about to i ts uni versi ti es, i n parti cul ar, are
5
reputati onal harm or that students won' t come there, that i t
6
wi l l undermi ne thei r di versi ty. They don' t ci te any cases
7
that defi ne l ack of di versi ty at a uni versi ty, or somethi ng
8
l i ke that, even assumi ng they coul d prove that as an i nj ury.
9
THE COURT: I don' t thi nk that' s thei r argument. I
1 0
thi nk they' re tal ki ng about di rect fi nanci al harm i n thei r
1 1
decl arati ons.
1 2
MS. BENNETT: I mean, I don' t read them that way,
1 3
Your Honor. I di dn' t see any sort of cal cul ati ons of
1 4
fi nanci al harm l i ke there were i n Texas. They tal ked about
1 5
facul ty members that mi ght not be abl e to teach; al though
1 6
most of those were l awful permanent resi dents that actual l y
1 7
were not affected by the order. They tal ked about the
1 8
possi bi l i ty of some students that mi ght not be abl e to
1 9
travel . Most of i t was very specul ati ve. I di dn' t see - -
20
the onl y pl ace that I saw numbers of monetary l osses was i n
21
thei r al l egati ons about l ost tax revenue. And as we
22
expl ai ned i n our bri ef, those are - - l ots of courts have
23
recogni zed that sort of general i zed gri evances l i ke that are
24
not cogni zabl e i nj uri es, anal ogi zi ng i t to the
25
taxpayer- standi ng context.
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1
THE COURT: I f I have a student who i s admi tted to
2
one of those two uni versi ti es, who i s i n a country who i s now
3
unabl e to come to the Uni ted States, enrol l and pay tui ti on,
4
i s that not a di rect fi nanci al harm?
5
MS. BENNETT: Your Honor, we don' t thi nk i t' s a
6
di rect fi nanci al harm to the state. We thi nk i t' s - - I mean,
7
perhaps gi ven the ci rcumstances, and i t woul d depends on the
8
ci rcumstances, coul d be a harm to the i ndi vi dual . But the - -
9
THE COURT: No, they' re benefi tti ng, they' re not
1 0
payi ng that outrageous tui ti on. You know, i t' s the
1 1
Uni versi ty of Washi ngton, part of the State of Washi ngton, or
1 2
Washi ngton State, part of the State of Washi ngton, who are
1 3
not recei vi ng these dol l ars from thi s student who, under the
1 4
Executi ve Order, can' t get i nto the Uni ted States.
1 5
MS. BENNETT: Wel l , Your Honor, I mean, fi rst of al l ,
1 6
I ' l l poi nt out that I ' m not sure they make those al l egati ons
1 7
of a speci fi c student. But I woul d al so say that we thi nk
1 8
that i nj ury i s too far down the chai n of causati on. That
1 9
i t' s an i nci dental i mpact. And i f Your Honor were to fi nd
20
standi ng i n that ci rcumstance, i t' s hard to i magi ne a federal
21
l aw or a federal acti on that woul dn' t i n some way down the
22
l i ne have effect on states, whi ch woul d essenti al l y al l ow
23
states to sue to chal l enge any federal l aw i f they coul d
24
poi nt to a way i n whi ch some i ndi vi dual was affected by the
25
l aw because i t appl i ed to them, and then that i ndi vi dual , the
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1
effect on that i ndi vi dual had some effect on the state. And
2
we thi nk that that' s too expansi ve of a defi ni ti on of
3
standi ng.
4
THE COURT: Wel l , the odd coupl e of the Fi fth Ci rcui t
5
i n thei r opi ni on i n United States v. Texas, that seems to me
6
to, you know, basi cal l y fol l ow the l i nes of what you j ust
7
sai d i s i mproper.
8
MS. BENNETT: Wel l , Your Honor, as I sai d, we
9
respectful l y di sagree wi th the Fi fth Ci rcui t' s deci si on and
1 0
note, of course, as Your Honor knows, that you' re not bound
1 1
by that deci si on.
1 2
Pl ai nti ffs haven' t ci ted anythi ng i n the Ni nth Ci rcui t
1 3
that rel i es on that sort of i nj ury. As we expl ai ned i n the
1 4
bri efs, some of the cases they ci ted, I bel i eve the one
1 5
school case that they ci te i nvol ved a bank that had
1 6
termi nated i ts l oan guarantee program wi th the school . So
1 7
that was a more di rect effect on the school . Whereas here
1 8
the government i s not regul ati ng i n any way the school . The
1 9
government' s i nteracti ons are wi th i ndi vi dual s. And they
20
are, perhaps, down- the- l i ne consequences on the state,
21
al though we thi nk many of those, i f not al l of them, are
22
specul ati ve.
23
THE COURT: Let me move you off of standi ng, i f you
24
woul d. Gi ven the breadth of authori ty of the Executi ve i n
25
the area of i mmi grati on, do you acknowl edge any l i mi tati on on
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1
hi s or her power?
2
MS. BENNETT: Your Honor, I don' t thi nk Your Honor
3
needs to answer that questi on to deci de on thi s case.
4
THE COURT: No, but i t seemed l i ke a good questi on.
5
MS. BENNETT: I don' t thi nk i t woul d be wi se to sort
6
of opi ne on what the extent of the Executi ve' s power i s.
7
Here we have speci fi c ci rcumstances where the Presi dent has
8
i ssued thi s Executi ve Order. I t was pursuant to authori ty
9
that Congress gave hi m i n Secti on 21 2( f) of the I NA that
1 0
speci fi cal l y al l ows hi m to suspend the entry of certai n
1 1
al i ens or cl ass of al i ens when he fi nds that i t woul d be
1 2
detri mental to the i nterests of the Uni ted States to al l ow
1 3
them i n.
1 4
So here we have the Presi dent acti ng pursuant to power
1 5
that Congress gave hi m, whi ch means, under the Youngstown
1 6
Steel sei zure cases, he' s acti ng at the apex of hi s power.
1 7
And the Executi ve Order, as Your Honor menti oned, i s
1 8
ti ed - - the countri es that i t appl i es to - - i s ti ed to
1 9
countri es that Congress previ ousl y, for two of them,
20
expl i ci tl y desi gnated as countri es of concern, and that
21
Congress desi gnated authori ty to the Presi dent to - - or,
22
sorry, to federal agenci es, to desi gnate other countri es.
23
And under the pri or admi ni strati on, the remai ni ng fi ve
24
countri es were desi gnated as areas of concern. And so we
25
thi nk i n the context of, certai nl y i n the context of thi s
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1
case, the Presi dent i s acti ng wel l wi thi n hi s - - the
2
authori ty that Congress has gi ven hi m. And Your Honor need
3
not opi ne on what he may or may not be abl e to do beyond
4
that.
5
Your Honor, wi th respect to the pl ai nti ffs' argument that
6
the Presi dent' s authori ty i s somehow l i mi ted by Secti on
7
1 1 52( a) ( 1 ) ( A) of the I NA, as we expl ai ned i n our bri efi ng, we
8
don' t read that as a l i mi tati on on the Presi dent' s expansi ve
9
power under 21 2( f) . As we noted i n our bri efs, there have
1 0
been other presi dents that have exerci sed the power i n 21 2( f)
1 1
i n ways that di sti ngui sh between nati onal i ti es, as the
1 2
Presi dent has done here.
1 3
We al so menti oned that these di sti ncti ons between
1 4
nati onal i ti es were made expl i ci tl y by Congress i n 8 U. S. C.
1 5
1 1 87. That' s what the Presi dent has ti ed the Executi ve Order
1 6
to here. And so we don' t understand 1 1 52( a) as i mposi ng a
1 7
l i mi tati on on the Presi dent' s power.
1 8
I f i t di d, as we poi nted out i n our bri ef, you can i magi ne
1 9
a si tuati on where basi cal l y that provi si on woul d prevent the
20
Presi dent from suspendi ng the entry of al i ens from countri es
21
that the Uni ted States has to be at war wi th. And we don' t
22
thi nk that' s a fai r readi ng of the statute. So we thi nk that
23
21 2( f) appl i es i n si tuati ons where the Presi dent has made the
24
determi nati on that the entry of certai n al i ens woul d be
25
detri mental to the Uni ted States, and si tuati ons where
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that - - when that determi nati on has not been made, then the
2
other provi si on i n 1 1 52 appl i es to prevent these
3
di scri mi nati on - - to bar certai n types of di scri mi nati on i n
4
the i ssuance of i mmi grant vi sas.
5
THE COURT: I ' d l i ke to move you al ong to equal
6
protecti on i f we can.
7
MS. BENNETT: Sure.
8
THE COURT: You strongl y urge that stri ct scruti ny
9
doesn' t appl y. Can i t ever appl y i n the i mmi grati on context,
1 0
i n the government' s vi ew?
1 1
MS. BENNETT: Your Honor, agai n, I hesi tate to opi ne
1 2
on whether i t can ever appl y as opposed to whether i t appl i es
1 3
under the ci rcumstances of thi s case. The courts have made
1 4
cl ear that di sti ncti ons based on nati onal i ty, whi ch i s what
1 5
thi s Executi ve Order does, i n the i mmi grati on context, are
1 6
compl etel y val i d and l egi ti mate and do not vi ol ate the
1 7
Consti tuti on. And so i n the context of thi s case, there' s no
1 8
equal protecti on vi ol ati on.
1 9
Wi th respect to the argument of rel i gi ous di scri mi nati on.
20
Agai n, i t' s a l i ttl e bi t confusi ng whether the - - exactl y
21
what the state' s rel i gi ous di scri mi nati on cl ai m i s. We
22
understand i t to be l i mi ted to Secti on 5 of the Executi ve
23
Order, whi ch i s about refugees. And i n that context, for
24
reasons Your Honor menti oned, we thi nk the cl ai m i s unri pe.
25
But i t al so - - that provi si on doesn' t di scri mi nate agai nst
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rel i gi on.
2
THE COURT: Wel l , no. I t may not di scri mi nate, but
3
i t favors one over another.
4
MS. BENNETT: I t doesn' t, Your Honor. I t sets up a
5
system - - i t doesn' t even set up a system. I t says, 1 20 days
6
from now, once the suspensi on of the refugee program i s back
7
on track, that the executi ve branch, the Secretary of
8
Homel and Securi ty and Secretary of State, are to make changes
9
to the extent permi tted by l aw to the pri ori ti zed refugee
1 0
cl ai ms based on rel i gi ous- based persecuti on where the
1 1
rel i gi on i s a mi nori ty rel i gi on i n that i ndi vi dual ' s country
1 2
of nati onal i ty.
1 3
And, Your Honor, that provi si on doesn' t j ust appl y to the
1 4
seven countri es that are desi gnated i n Secti on 3 of the
1 5
order. I t appl i es to al l countri es. So you can i magi ne
1 6
that, whi l e i t mi ght be true that the seven countri es are
1 7
maj ori ty of Musl i ms, there are other countri es where I sl am
1 8
woul d not be the maj ori ty rel i gi on. And i n those contexts
1 9
the mi nori ty rel i gi on mi ght be I sl am.
20
THE COURT: But under the establ i shment cases, I
21
thi nk you' re argui ng agai nst your own posi ti on, aren' t you?
22
What you' re sayi ng i s, i n any parti cul ar country we' re goi ng
23
to reward someone for bel ongi ng to a parti cul ar fai th or
24
practi ci ng a parti cul ar fai th.
25
MS. BENNETT: Wel l , Your Honor, I don' t thi nk we' re
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sayi ng that. The government has l ong pri ori ti zed or
2
permi tted asyl um cl ai ms or other types of cl ai ms i n the
3
i mmi grati on context based on rel i gi ous persecuti on. So the
4
government i s not doi ng anythi ng di fferent than what i t' s
5
al ready done. I t' s not about the parti cul ar rel i gi on, i t' s
6
essenti al l y accommodati ng rel i gi on, whi ch the government has
7
al ways done.
8
But as Your Honor - - as we sai d before, thi s i s somethi ng
9
that the Presi dent has di rected executi ve agenci es to l ook
1 0
i nto thi s matter goi ng forward. And so unti l - - certai nl y
1 1
unti l 1 20 days passes, but we thi nk even beyond that, because
1 2
unti l i t' s actual l y i mpl emented we don' t know what i t' s goi ng
1 3
to l ook l i ke, that there' s no establ i shment- cause probl em.
1 4
THE COURT: Al l ri ght. I thi nk I understand your
1 5
argument. Let' s tal k about Secti on 3. I ' m goi ng to do the
1 6
same thi ng, tryi ng to l eave you some ti me to j ust tal k as
1 7
opposed to bei ng i nterrupted.
1 8
The rati onal e for Secti on 3 i s i nvoki ng 9/ 1 1 . And my
1 9
questi on to you i s: Have there been terrori st attacks i n the
20
Uni ted States by refugees or other i mmi grants from the seven
21
countri es l i sted, si nce 9/ 1 1 ?
22
MS. BENNETT: Your Honor, I don' t know the speci fi c
23
detai l s of attacks or pl anned attacks. I thi nk - - I wi l l
24
poi nt out, fi rst of al l , that the rati onal e for the order was
25
not onl y 9/ 1 1 , i t was to protect the Uni ted States from the
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potenti al for terrori sm.
2
I wi l l al so note that the seven countri es that are l i sted
3
i n the Executi ve Order are the same seven countri es that were
4
al ready subj ect to other restri cti ons i n obtai ni ng vi sas that
5
Congress put i n pl ace, both by nami ng countri es, Syri a and
6
I raq, and that the pri or admi ni strati on put i n pl ace by
7
desi gnati ng them as pl aces where terrori sm i s l i kel y to
8
occur, or - - the speci fi c factors are whether the presence i n
9
a parti cul ar country i ncreases the l i kel i hood that an al i en
1 0
i s a credi bl e threat to U. S. securi ty or an area that i s a
1 1
safe haven for terrori sts.
1 2
THE COURT: Wel l , l et me wal k you back, then. You' re
1 3
from the Department of Justi ce, i f I understand correctl y?
1 4
MS. BENNETT: Yes.
1 5
THE COURT: So you' re aware of l aw enforcement. How
1 6
many arrests have there been of forei gn nati onal s for those
1 7
seven countri es si nce 9/ 1 1 ?
1 8
MS. BENNETT: Your Honor, I don' t have that
1 9
i nformati on. I ' m from the ci vi l di vi si on i f that hel ps get
20
me off the hook.
21
THE COURT: Let me tel l you. The answer to that i s
22
none, as best I can tel l . So, I mean, you' re here argui ng on
23
behal f of someone that says: We have to protect the Uni ted
24
States from these i ndi vi dual s comi ng from these countri es,
25
and there' s no support for that.
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MS. BENNETT: Your Honor, I thi nk the poi nt i s that
2
because thi s i s a questi on of forei gn affai rs, because thi s
3
i s an area where Congress has del egated authori ty to the
4
Presi dent to make these determi nati ons, i t' s the Presi dent
5
that gets to make the determi nati ons. And the court doesn' t
6
have authori ty to l ook behi nd those determi nati ons. They' re
7
essenti al l y l i ke determi nati ons that are commi tted to agency
8
di screti on.
9
And we do thi nk that - - despi te pl ai nti ffs' cl ai m - - that
1 0
Kl eindienst v. Mandel i s di rectl y on poi nt. And i f the four
1 1
corners of the Executi ve Order offer a faci al l y l egi ti mate
1 2
and bona fi de reason for i t, whi ch they do here, that the
1 3
court can' t l ook behi nd that.
1 4
THE COURT: Wel l , counsel , I understand that from
1 5
your papers, and you very forceful l y presented that argument.
1 6
But I ' m al so asked to l ook and determi ne i f the Executi ve
1 7
Order i s rati onal l y based. And rati onal l y based to me
1 8
i mpl i es that to some extent I have to fi nd i t grounded i n
1 9
facts as opposed to fi cti on.
20
MS. BENNETT: Wel l , Your Honor, we actual l y don' t
21
thi nk you are supposed to l ook at whether i t' s rati onal l y
22
based. We thi nk that the standard i s, agai n, faci al l y
23
l egi ti mate, and that there are some cases that say the court
24
woul d have to fi nd i t whol l y i rrati onal . And agai n, Your
25
Honor, I woul d poi nt to the fact that Congress i tsel f has
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speci fi cal l y desi gnated two of these countri es as areas of
2
concern wi th respect to terrori sm. And the Obama
3
Admi ni strati on, the executi ve branch, desi gnated the
4
remai ni ng fi ve. And so i t' s not that thi s Executi ve Order
5
i s, i n that regard, sayi ng anythi ng new about these bei ng
6
countri es of concern as i t regards terrori sm.
7
THE COURT: Wel l , l et' s go back to somethi ng you were
8
starti ng to get around to when I i nterrupted you. You were
9
goi ng to argue Katzenbach. I sn' t that j ust cl assi c di cta?
1 0
MS. BENNETT: Your Honor, I thi nk to the extent
1 1
you' re tal ki ng about that states - -
1 2
THE COURT: I ' m tal ki ng about the l anguage you quote
1 3
i n your bri ef.
1 4
MS. BENNETT: Wel l , I mean, we al so, I thi nk, ci ted
1 5
that case for the i dea that states don' t have parens patriae
1 6
standi ng. But for the i dea that states don' t have due
1 7
process ri ghts, we ci te other cases i n our bri ef. I thi nk
1 8
that i t' s a wel l - establ i shed - - the Fi fth Amendment appl i es
1 9
to persons, and cases establ i shed that the state i s not a
20
person i n that regard. And so the state doesn' t have due
21
process ri ghts to assert.
22
THE COURT: Wel l then how do I reconci l e that wi th
23
Massachusetts v. EPA?
24
MS. BENNETT: Your Honor, Massachusetts v. EPA, whi ch
25
was a standi ng case. Ri ght? So there the facts were very
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speci fi c. There you had two factors that the court found
2
rel evant. One, you had an actual i nj ury to the terri tori al
3
soverei gnty of Massachusetts. The court tal ked about how
4
gl obal warmi ng actual l y affected the terri tory of
5
Massachusetts, i ts coastl i ne, an area that was owned by the
6
state. And the second factor was that Congress had
7
expl i ci tl y gi ven states and other parti es a procedural ri ght,
8
when someone peti ti oned the EPA to l ook i nto gl obal warmi ng
9
and the EPA deni ed that peti ti on, then Congress created a
1 0
procedural mechani sm for that person to chal l enge that
1 1
deci si on.
1 2
So the court sai d, i n an area where the state has an
1 3
i nj ury- i n- fact, i t' s an i nj ury to i ts terri tori al soverei gnty
1 4
and these expl i ci t procedural ri ghts, that there' s standi ng.
1 5
And nei ther one of those ci rcumstances are present here.
1 6
Washi ngton, of course, doesn' t al l ege any i nj ury to i ts
1 7
terri tori al soverei gnty. I t doesn' t - - you know, i ts other
1 8
al l eged i nj uri es are sort of i nci dental .
1 9
THE COURT: Expl ai n to me what you mean by the term
20
" terri tori al soverei gnty. "
21
MS. BENNETT: I nj ury to i ts terri tory. So i t' s
22
pol l uti on of i ts ri vers, for exampl e, pol l uti on of i ts
23
coastl i ne, pol l uti on of i ts l and.
24
THE COURT: So the federal government can do whatever
25
i t wanted to peopl e who l i ve here, and as l ong as the l and i s
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not damaged, there' s no harm or there' s no cause of acti on?
2
MS. BENNETT: Wel l , Your Honor, I mean, I woul dn' t
3
make a statement that broad. I thi nk that the statement I
4
woul d make here i s that when the federal government regul ates
5
i ndi vi dual s, and there are sort of specul ati ve downstream
6
effects that mi ght affect the state i n terms of l ost revenue
7
and stuff l i ke that, cases have sai d no, that that' s not
8
suffi ci ent. That i t' s not suffi ci entl y di rect as i t was i n
9
Massachusetts.
1 0
THE COURT: Al l ri ght. Before I run out of al l your
1 1
ti me al so, what l i mi ts does 1 1 52( a) ( 1 ) ( A) pl ace on the
1 2
Executi ve?
1 3
MS. BENNETT: Your Honor, we thi nk - - so, i n terms of
1 4
when, as I was tryi ng to expl ai n before, i n terms of when the
1 5
Presi dent has made a determi nati on under Secti on 21 2( f) of
1 6
the I NA, that entry of certai n al i ens shoul d be suspended
1 7
because i t woul d be detri mental to the Uni ted States
1 8
otherwi se, we thi nk that that trumps the 1 1 52( a) .
1 9
THE COURT: Wel l , l et' s concentrate on that. You
20
argue thi s i n your bri ef that the Executi ve can cl assi fy
21
al i ens by ori gi n of bi rth or nati onal i ty. And then there i s
22
a statute that says the cl assi c anti - di scri mi nati on l anguage.
23
How do I reconci l e those two concepts?
24
MS. BENNETT: Your Honor, so we thi nk that the
25
1 1 52( a) onl y appl i es when the Presi dent has not made that
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desi gnati on. And I wi l l - - to sort of pl ay thi s out a l i ttl e
2
more - -
3
THE COURT: Stop there. Tel l me what the authori ty
4
i s for that argument. You make i t i n your bri efi ng and you
5
don' t gi ve me any authori ty for i t there; you j ust sort of
6
make the statement that, yes, that' s our posi ti on. Hel p me
7
understand where i t comes from.
8
MS. BENNETT: I thi nk the fi rst pri nci pl e woul d be
9
that the court i s supposed to attempt to reconci l e competi ng
1 0
provi si ons of a statute. I thi nk there' s al so, Your Honor, a
1 1
consti tuti onal avoi dance poi nt. Here the Presi dent i s acti ng
1 2
i n an area of hi s Arti cl e I I powers i n forei gn affai rs. And
1 3
i f the court were to fi nd some sort of confl i ct between the
1 4
two, the court mi ght run up agai nst the consti tuti onal
1 5
questi on of whether the Presi dent had authori ty to make
1 6
di sti ncti ons based on nati onal i ty.
1 7
THE COURT: Or that the Executi ve i s runni ng up
1 8
agai nst the l aw that Congress has passed.
1 9
MS. BENNETT: Wel l , Your Honor, to the extent that
20
you' re concerned about that, I woul d j ust note that Congress
21
i tsel f, i n the I NA, makes those very same di sti ncti ons based
22
on nati onal i ty. I n the provi si on that the Presi dent i s
23
rel yi ng on here 1 1 - - 8 U. S. C. 1 1 87, where i t says that
24
di fferent rul es i n terms of appl yi ng for vi sas appl y to, and
25
i t names two countri es, I raq and Syri a, and then al l ows the
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Presi dent to desi gnate others.
2
We thi nk that a readi ng that says that 1 1 52 appl i es, no
3
matter what, woul d trump that provi si on or woul d suggest that
4
that provi si on was i nval i d.
5
THE COURT: I don' t get a l ot of chance to do
6
statutory i nterpretati on. But l et' s concentrate on that for
7
a moment. As I understand i t, 1 1 52( a) was promul gated after
8
1 1 82( f) . Do you agree wi th that?
9
MS. BENNETT: Yes, Your Honor.
1 0
THE COURT: And di dn' t Congress then have to, by
1 1
statutory constructi on, Congress had to be aware of 1 1 82( f) ?
1 2
MS. BENNETT: Yes, Your Honor. That' s ri ght.
1 3
THE COURT: And i n that parti cul ar provi si on i t makes
1 4
a number of excepti ons, but i t does not except to 52.
1 5
MS. BENNETT: Because we don' t thi nk Congress thought
1 6
i t appl i ed. Agai n, thi s i s a - - the 1 1 52( a) i s i n a narrower
1 7
secti on of the statute that tal ks about creati ng a uni form
1 8
quota system for i mmi grant vi sas, for whi ch peopl e are goi ng
1 9
to be al l owed to come i nto thi s country. And we j ust thi nk
20
that that' s a narrower secti on of the statute and that the
21
Presi dent' s broader authori ty - - agai n, Your Honor, I
22
hesi tate to repeat thi s, but I thi nk i t' s a good exampl e. I
23
mean, Your Honor, i f thi s provi si on of 1 1 52 trumped 21 2( f) ,
24
then the Presi dent woul d essenti al l y be prohi bi ted from
25
restri cti ng the entry of al i ens to a country at whi ch the
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Uni ted States was at war. And we j ust don' t thi nk that
2
Congress coul d have meant that.
3
THE COURT: You' ve shaken those bones about as much
4
as you can get out of them.
5
Why shoul dn' t the court assume that Congress di d not want
6
to except 1 1 82( f) from the operati on of 1 1 51 ? I mean,
7
Justi ce Scal i a has not been wi th us for a year, but i t seems
8
that what you' re runni ng to now i s, oh, al l I have to do i s
9
l ook at the l egi sl ati ve hi story and that must have been what
1 0
they meant.
1 1
MS. BENNETT: Wel l , I don' t thi nk Your Honor needs to
1 2
l ook at the l egi sl ati ve hi story. I thi nk you can l ook at the
1 3
text and the structure of the statute, that thi s broader
1 4
power authori zi ng the Presi dent to suspend the entry of any
1 5
al i ens, or any cl ass of al i ens, supersedes thi s other
1 6
provi si on that otherwi se woul d appl y i n the absence of that.
1 7
I woul d al so note, Your Honor, that we al so make
1 8
addi ti onal arguments i n our bri ef about the procedural
1 9
exempti on to 1 1 52( a) and i ts narrowness as wel l . But we
20
thi nk 21 2( f) trumps that provi si on.
21
THE COURT: Al l ri ght. You' ve got about si x mi nutes
22
l eft, so I won' t i nterrupt you ei ther for a bi t here.
23
MS. BENNETT: Okay, Your Honor. Thank you.
24
I ' l l j ust make a few more poi nts. I thi nk I covered
25
l argel y what I wanted to cover. But wi th respect to the
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1
remai ni ng two prel i mi nary i nj uncti on factors, I woul d j ust
2
say that the state, we don' t thi nk they' ve establ i shed
3
standi ng and i nj ury. But certai nl y even i f Your Honor
4
di sagrees, they haven' t shown i rreparabl e harm. As thi s
5
process has sort of shown, the Executi ve Order sets up a
6
case- by- case - - or sets up a system where there can be
7
case- by- case wai vers of speci fi c exempti ons.
8
And so the i dea that a state can come i n and sort of sue
9
on behal f of al l of i ts ci ti zens wi thout real l y sort of
1 0
pl ayi ng out speci fi c ci rcumstances where i t' s been appl i ed
1 1
unl awful l y, we thi nk that' s not the proper avenue for a TRO.
1 2
Agai n, that certai nl y, perhaps, some of these i ndi vi dual s
1 3
coul d bri ng thei r own case and we' d have to l ook at the facts
1 4
of those cases. But as for thi s faci al chal l enge, for Your
1 5
Honor to enj oi n thi s restrai ni ng order, or frankl y even parts
1 6
of i t, even provi si ons of i t, we thi nk that' s a faci al
1 7
chal l enge and that Your Honor can' t do that i n l i ght of the
1 8
fact that i t i s l awful i n some of i ts appl i cati ons.
1 9
And then we woul d j ust poi nt to the bal ance of the
20
equi ti es, Your Honor, and note agai n that i n thi s regard the
21
Presi dent was acti ng pursuant to congressi onal authori ty, at
22
the hei ght of hi s power, i n the area of nati onal securi ty,
23
forei gn affai rs and i mmi grati on.
24
So we' d ask that Your Honor deny the TR0.
25
THE COURT: Thank you.
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1
MS. BENNETT: Thank you.
2
THE COURT: Mr. Purcel l , you have about si x mi nutes.
3
MR. PURCELL: Thank you, Your Honor.
4
Just a few poi nts. Fi rst, the federal government has
5
argued that the harms to UW and WSU and thei r students and
6
facul ty are abstract. That j ust coul dn' t be further from the
7
case. They have students and facul ty who are l i teral l y
8
stranded overseas, as they' ve stated i n the decl arati ons.
9
They have sponsored vi sas for peopl e that are wasted because
1 0
they are not goi ng to be abl e to come. They went to great
1 1
ti me and expense to do that.
1 2
Thi s harm i s much more di rect and i mmedi ate than what was
1 3
happeni ng i n ei ther Massachusetts v. EPA or Texas v. United
1 4
States. I n Texas v. United States the i mmi grati on program
1 5
that was chal l enged hadn' t even taken effect yet. No one had
1 6
even qual i fi ed for i f yet. The harm was a ways down the
1 7
road. And the court there sti l l granted a prel i mi nary
1 8
i nj uncti on. Here there' s l i teral l y peopl e stuck overseas who
1 9
can' t get back to thei r uni versi ti es.
20
THE COURT: But the causes of acti on bel ong to them.
21
The state can' t be exerci si ng them on thei r behal f.
22
MR. PURCELL: The uni versi ti es and thei r students are
23
harmed by those harms, Your Honor. I t' s the uni versi ty that
24
spent the money to bri ng the peopl e here who can no l onger
25
come. I t' s the uni versi ty that went to the ti me and troubl e
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1
of sponsori ng those schol ars to come. And they' re harmed
2
i mmedi atel y. So perhaps, yes, certai nl y, the peopl e who are
3
stranded overseas may have thei r own cl ai m, but that doesn' t
4
mean that the state has no cl ai m. Massachusetts v. EPA makes
5
that cl ear, Your Honor.
6
The federal government al so tal ked about a Ni nth Ci rcui t
7
case not sayi ng anythi ng remotel y l i ke Texas v. United
8
States. We ci ted the City of Sausal ito case on page two of
9
our standi ng bri ef, where the court found standi ng based on
1 0
aestheti c harms to a l ocal government that were not
1 1
quanti fi ed i n any sort of monetary way.
1 2
You al so asked me, Your Honor, i f the court had ever
1 3
bl ocked part of an i mmi grati on order based on the equal
1 4
protecti on cl ause and due process cl ause, and my co- counsel
1 5
very hel pful l y poi nted out that, i n fact, two courts have
1 6
bl ocked parts of thi s order based on the equal protecti on
1 7
cl ause and due process cl ause. And I can gi ve you those
1 8
orders.
1 9
I t' s the Darweesh case out of the Uni ted States Di stri ct,
20
Eastern Di stri ct of New York. That order was entered on
21
January 28th - - sorry, that order was entered on January,
22
yes, 28th. And the - - I ' m goi ng to butcher thi s name - -
23
Tootkaboni case, out of the Di stri ct of Massachusetts, i ssued
24
on January 29th.
25
And both of those cases found that the peti ti oners had a
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1
strong l i kel i hood of success i n establ i shi ng the vi ol ati ons
2
of the due process and the equal protecti on cl ause of the
3
Uni ted States Consti tuti on. I don' t have al l the orders wi th
4
me, but at l east those two have found i t on thi s order.
5
The next thi ng I ' d say, Your Honor, i s that the
6
rel i gi ous- based cl ai ms, the federal government i s tryi ng to
7
l i mi t those onl y to the refugee porti ons of the order. Our
8
posi ti on i s broader than that, Your Honor. We' re sayi ng part
9
three and part fi ve were moti vated, i n part, by desi re to
1 0
target a parti cul ar, unpopul ar rel i gi ous group, Musl i ms, and
1 1
that that undermi nes the basi s for both of those secti ons.
1 2
Your Honor hel pful l y poi nted out that the Katzenbach
1 3
l anguage i s di cta. I ' m sorry I di dn' t say that, but you' re
1 4
absol utel y ri ght. And, frankl y, the federal government' s
1 5
posi ti on about the standard of revi ew here i s fri ghteni ng. I
1 6
mean, they' re basi cal l y sayi ng that you can' t revi ew anythi ng
1 7
about what the Presi dent does or says, as l ong as he says
1 8
i t' s for nati onal securi ty reasons. And that j ust can' t be
1 9
the l aw.
20
And the l ast thi ng I ' d say, Your Honor, i s that we are
21
aski ng here for nati onwi de rel i ef. We do have now two states
22
that are part of thi s case that are obvi ousl y some di stance
23
apart. We al so have peopl e tryi ng to come to Washi ngton from
24
al l over the worl d, through vari ous pl aces, and we bel i eve
25
that nati onwi de rel i ef i s appropri ate here for the same
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reasons that i t was i n United States v. Texas.
2
So, Your Honor, i n sum, the state i s gri evousl y harmed
3
here, both i n i ts propri etary capaci ty and i n i ts parens
4
patriae capaci ty. The decl arati ons that are attached to our
5
bri efi ng, the descri pti ons of peopl e who have been harmed i n
6
the ami cus bri efs, are heartbreaki ng. And i t' s not j ust harm
7
to peopl e who are tryi ng to come here who have never been
8
here. Agai n, that i s not the focus of our cl ai m. The focus
9
of our cl ai m i s the harm to peopl e who have been here, i n
1 0
many cases for many years, fol l owi ng the l aw, and you know,
1 1
travel ed overseas wi thout warni ng that thi s was goi ng to
1 2
happen, or coul d no l onger travel , and have l ost fundamental
1 3
ri ghts wi thout any process at al l i n an order that was
1 4
moti vated l argel y by rel i gi ous ani mus.
1 5
So we' re aski ng you to enter the temporary restrai ni ng
1 6
order that we' re seeki ng here. Thank you, Your Honor.
1 7
THE COURT: Thank you, counsel . I thi nk argument was
1 8
hel pful .
1 9
The fol l owi ng oral opi ni on wi l l consti tute the i nformal
20
opi ni on of the court. I t i s a formal opi ni on for purposes of
21
rul i ng on thi s moti on. But as I i ndi cated to you, I i ntend
22
to do a formal wri tten order. And hopeful l y we wi l l have
23
that on fi l e over the weekend, so that by the ti me the Ni nth
24
Ci rcui t opens on Monday you' l l be i n a posi ti on to be abl e to
25
seek revi ew of i t.
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1
Before the court i s pl ai nti ffs State of Washi ngton and
2
State of Mi nnesota' s emergency moti on for a temporary
3
restrai ni ng order. For the audi ence out there, l awyers refer
4
to those as TROs. And that' s not i ni ti al s that we l i ke to
5
see.
6
The court has revi ewed the moti on, the compl ai nt, the
7
amended compl ai nt, the submi ssi ons of the parti es, the
8
submi ssi ons of the ami ci , the rel evant porti ons of the
9
record, and most i mportantl y, the appl i cabl e l aw. And I do
1 0
very much appreci ate the fact that counsel have come for oral
1 1
argument today on a very expedi ted basi s; and have done a
1 2
ni ce j ob of submi tti ng wri tten materi al s to the court, whi ch
1 3
are hel pful , and al so parti ci pati ng i n oral argument.
1 4
I ' m goi ng to di gress for a moment and remi nd peopl e who
1 5
see thi s opi ni on and wonder what' s goi ng on. Fundamental to
1 6
the work of thi s court i s a recogni ti on that i t i s onl y one
1 7
of three branches, three equal branches of our government.
1 8
The rol e assi gned to the court i s not to create pol i cy, and
1 9
i t' s not to j udge the wi sdom of any parti cul ar pol i cy
20
promoted by the other two branches. That i s the work of the
21
l egi sl ati ve and executi ve branches and the ci ti zens who
22
ul ti matel y, by exerci si ng thei r ri ghts to vote, exerci se
23
democrati c control over those branches.
24
The work of the j udi ci ary i s l i mi ted to ensuri ng that the
25
acti ons taken by those two branches comport wi th our l aws,
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and most i mportantl y, our consti tuti on.
2
There i s a very narrow questi on before the court today
3
that i s asked to be consi dered and that i s whether i t i s
4
appropri ate to enter a TRO agai nst certai n acti ons taken by
5
the Executi ve that are enumerated i n thi s speci fi c l awsui t.
6
Al though that questi on i s narrow, the court i s mi ndful of the
7
consi derabl e i mpact that i ts order may have on the parti es
8
before i t, the executi ve branch of our government, and the
9
country' s ci ti zens and resi dents.
1 0
I wi l l not repeat the procedural background of thi s case.
1 1
I t wi l l be i n the wri tten order. I woul d i nstead note that
1 2
the moti on was fi l ed and that the federal defendants opposed
1 3
the state' s moti on.
1 4
Any questi on regardi ng l awsui ts i n federal court starts
1 5
wi th the i ssue of: Does the court have j uri sdi cti on over the
1 6
federal defendants and the subj ect matter of the l awsui t? I n
1 7
terms of noti ce to the federal defendants, that was certai nl y
1 8
accompl i shed, and i ndeed, the federal defendants have
1 9
appeared and argued before the court and defended thei r
20
posi ti on i n thi s acti on. And si nce thi s i s an attack based
21
on the consti tuti on and federal l aw, I fi nd that I do have
22
subj ect matter j uri sdi cti on.
23
The standard for i ssui ng a restrai ni ng order i n thi s
24
ci rcui t i s the same as for i ssui ng a prel i mi nary i nj uncti on.
25
A temporary restrai ni ng order i s, as the government has
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1
noted, an extraordi nary remedy that may onl y be awarded upon
2
a cl ear showi ng that the pl ai nti ff i s enti tl ed to such
3
rel i ef. A ci tati on to the Wi nter case, whi ch i s wel l known
4
to the l awyers.
5
The l egal standard for prel i mi nary i nj uncti ve rel i ef, and
6
hence for a temporary restrai ni ng order, i s that the
7
pl ai nti ff must be l i kel y to succeed on the meri ts, that i t
8
wi l l suffer i rreparabl e harm i n the absence of prel i mi nary
9
rel i ef, that the bal ance of equi ti es ti ps i n thei r favor, and
1 0
fi nal l y, that the i nj uncti on i s i n the publ i c i nterest.
1 1
The Ni nth Ci rcui t has an al ternati ve test whi ch i t' s used
1 2
from ti me to ti me and i s wel l known to the parti es and wi l l
1 3
be i n the wri tten order.
1 4
I t i s an i nteresti ng questi on i n regards to the standi ng
1 5
of the states to bri ng thi s acti on. I ' m sure the one i tem
1 6
that al l counsel woul d agree on i s that the standi ng l aw i s a
1 7
l i ttl e murky. I fi nd, however, that the state does have
1 8
standi ng i n regards to thi s matter, and therefore they are
1 9
properl y here. And I probed wi th both counsel my reasons for
20
fi ndi ng that, whi ch have to do wi th di rect, i mmedi ate harm
21
goi ng to the states, as i nsti tuti ons, i n addi ti on to harm to
22
thei r ci ti zens, whi ch they are not abl e to represent as
23
di rectl y.
24
Therefore, turni ng to the meri ts. The court fi nds that
25
for purposes of the entry of the temporary restrai ni ng order,
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1
that the state has met i ts burden of demonstrati ng that i t
2
faces i mmedi ate and i rreparabl e i nj ury as a resul t of the
3
si gni ng and i mpl ementati on of the Executi ve Order.
4
I fi nd that the state has sati sfi ed the test that i t i s
5
l i kel y to succeed on the meri ts of the cl ai m, whi ch woul d
6
enti tl e them to rel i ef. I fi nd that the bal ance of equi ti es
7
favor the states. And l astl y, I fi nd that a temporary
8
restrai ni ng order i s i n the publ i c i nterest.
9
I f I were to appl y the Ni nth Ci rcui t' s al ternati ve test, I
1 0
woul d fi nd that the states have establ i shed a questi on, a
1 1
seri ous questi on goi ng to the meri ts, and the bal ance of
1 2
equi ti es ti ps sharpl y i n thei r favor. As such, I fi nd that
1 3
the court shoul d and wi l l grant the temporary restrai ni ng
1 4
order.
1 5
The scope of that order i s as fol l ows: Federal defendants
1 6
and al l thei r respecti ve offi cers, agents, servants,
1 7
empl oyees, attorneys, and persons acti ng i n concert or
1 8
parti ci pati on wi th them are hereby enj oi ned and restrai ned
1 9
from:
20
( A) Enforci ng Secti on 3( c) of the Executi ve Order;
21
( B) Enj oi ned and restrai ned from enforci ng secti on 5( a)
22
of the Executi ve Order;
23
( C) Enj oi ned and restrai ned from enforci ng Secti on 5( b)
24
of the Executi ve Order, or proceedi ng wi th any acti on that
25
pri ori ti zes the refugee cl ai ms of certai n rel i gi ous
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1
mi nori ti es;
2
( D) Enj oi ned and restrai ned from enforci ng Secti on 5( c)
3
of the Executi ve Order, and l astl y;
4
( E) Enj oi ned and restrai ned from enforci ng Secti on 5( e)
5
of the Executi ve Order, to the extent Secti on 5( e) purports
6
to pri ori ti ze refugee cl ai ms of certai n rel i gi ous mi nori ti es.
7
Thi s TRO i s granted on a nati onwi de basi s and prohi bi ts
8
enforcement of Secti ons 3( c) , 5( a) , 5( b) , 5( c) and 5( e) of
9
the Executi ve Order at al l Uni ted States borders and ports of
1 0
entry pendi ng further orders from thi s court.
1 1
I consi dered the questi on of the government' s request that
1 2
the order shoul d be l i mi ted to Mi nnesota and Washi ngton, but
1 3
I fi nd that such parti al i mpl ementati on of the Executi ve
1 4
Order woul d undermi ne the consti tuti onal i mperati ve of a
1 5
uni form rul e of natural i zati on and Congress' s i nstructi on
1 6
that i mmi grati on l aws of the Uni ted States shoul d be enforced
1 7
vi gorousl y and uni forml y. That' s l anguage i s from Texas v.
1 8
United States, 809 F. 3d, 1 34, 1 55, 5th Ci rcui t 201 5.
1 9
I fi nd that no securi ty bond i s requi red under the Federal
20
Rul es of Ci vi l Procedure 65( c) , and I di rect that the parti es
21
confer and get back to the court promptl y - - today woul dn' t
22
be too l ate, but by next week - - regardi ng a date for the
23
prel i mi nary i nj uncti on heari ng, the ti me for the moti on for
24
the prel i mi nary i nj uncti on, the ti me for the federal
25
defendants to fi l e thei r opposi ti on and for the states to
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1
fi l e thei r repl y.
2
Once we know that, we' l l promptl y schedul e a heari ng on
3
the moti on for prel i mi nary i nj uncti on after we are i n recei pt
4
of the parti es' bri efi ng.
5
The court concl udes that the ci rcumstances that brought i t
6
here today are such that we must i ntervene to ful fi l l the
7
j udi ci ary' s consti tuti onal rol e i n our tri - part government.
8
Therefore, the court concl udes that entry of the
9
above- descri bed TRO i s necessary and the state' s moti on i s
1 0
hereby granted.
1 1
Counsel , anythi ng further at thi s ti me? Mr. Purcel l ?
1 2
MR. PURCELL: No, Your Honor.
1 3
THE COURT: Ms. Bennett?
1 4
MS. BENNETT: One more thi ng, Your Honor, as a
1 5
procedural matter the government woul d move Your Honor to
1 6
stay the TRO, for the same purposes that we opposed the TRO,
1 7
pendi ng a deci si on of the ASG of whether to appeal , whether
1 8
to fi l e an appeal .
1 9
THE COURT: I ' m sorry, pendi ng a deci si on by the. . .
20
MS. BENNETT: I ' m sorry, the Acti ng Sol i ci tor
21
General ; I ' m sorry, Your Honor, we use l ots of acronyms. By
22
the Acti ng Sol i ci tor General .
23
THE COURT: I understand the moti on and I am goi ng to
24
deny i t.
25
MS. BENNETT: Thank you, Your Honor.
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1
THE COURT: I wi l l do everythi ng I can to get you
2
prompt appel l ate revi ew, whi ch I thi nk i s the appropri ate
3
case to take.
4
MS. BENNETT: Thank you, Your Honor.
5
THE COURT: We wi l l be i n recess. Thank you,
6
counsel .
7
( The proceedi ngs recessed. )
1 0
1 1
1 2
1 3
1 4
1 5
1 6
1 7
1 8
1 9
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21
22
23
24
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C E R T I F I C A T E
/ s/ Debbie Zurn
DEBBI E ZURN
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
No. 17-35105
* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing
this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their
former law firm.
The Executive Order is a lawful exercise of the President’s authority over the
entry of aliens into the United States and the admission of refugees. Relying on his
express statutory authority to suspend entry of any class of aliens to protect the
through the refugee program and from countries that have a previously identified
link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose
procedures to ensure that adequate standards are in place to protect against terrorist
“facially legitimate and bona fide” justification that satisfies any constitutional
Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.
enforcement of the order. But even if some relief were appropriate, the court’s
State’s legal claims to encompass numerous applications of the Order that the State
visas to third-party aliens. It is well-settled that a State lacks authority to sue “as the
representative of its citizens” to protect them from the operation of federal law.
Katzenbach, 383 U.S. 301, 324 (1966). The State invokes the “special solicitude”
territory.” 549 U.S. 497, 519-20, 522-23 (2007). Here, by contrast, the State’s
interest in protecting its own territory is not at issue. Instead, the Constitution vests
the federal government with exclusive power over immigration for the Nation as a
whole, and Congress did not create any “procedural right” for States to sue the
federal government to challenge its decisions to deny the entry of (or revoke visas
To the contrary, an alien outside the United States has no substantive right or
basis for judicial review in the denial of a visa at all. See Brownell v. Tom We Shung,
352 U.S. 180, 184 n.3, 185 n.6 (1956). Moreover, Congress has been clear that the
issuance of a visa to an alien does not confer upon that alien any right of admission
into the United States, 8 U.S.C. § 1201(h), and that the Secretary of State “may, at
any time, in his discretion, revoke such visa or other documentation.” Id. § 1201(i).
If a visa is revoked, even the alien himself has no right of judicial review “except in
the context of a removal proceeding,” and only if the visa revocation “provides the
sole ground for removal.” Id. And even an alien who has been admitted to and
developed significant ties with this country, who has as a result come within the
protection of the Fifth Amendment’s Due Process Clause, has no protected property
or liberty interest in the retention of his visa. Knoetze v. U.S. Dep’t of State, 634
F.2d 207, 212 (5th Cir. 1981). A fortiori, the State cannot challenge the revocation
of third-party aliens’ visas here. The State likewise cannot challenge the Executive’s
The Supreme Court’s decisions in Kerry v. Din, 135 S. Ct. 2128 (2015), and
Kleindienst v. Mandel, 408 U.S. 753 (1972), also do not support even limited judicial
review of the State’s claims here. In those cases, U.S. citizens sought review of the
denial of a third-party visa on the ground that the citizens had an independent
§ 1182(f) to suspend the entry of “any class of aliens” into the United States, and
independently broad discretion over the refugee program under 8 U.S.C. § 1157.
the executive power to control the foreign affairs of the nation.” United States ex
rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). The State does not address
the text of § 1182(f), or the extensive caselaw relating to the exclusion of aliens from
the United States. And although the State suggests (Response 23) that it is somehow
impermissible for the President to rely on § 1182(f) “to impose a categorical ban on
admission,” the statute’s broad grant of authority to suspend the entry “of any class
of aliens,” “for such period as [the President] shall deem necessary,” whenever the
President finds that it would be “detrimental to the interests of the United States,”
clearly authorizes the categorical, temporary suspension the President has adopted
here.
of the entry of aliens from seven countries contravenes the restriction on nationality-
“the issuance of an immigrant visa,” Id., not to the President’s restrictions on the
right of entry. It also has no application at all to aliens who hold or seek non-
immigrant visas, such as student visas or work visas. And § 1152(a)(1)(B) permits,
Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012
(9th Cir. 2000), and should interpret “the specific [to] govern[] the general.”
RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012).
visas, whereas § 1182(f) governs the specific instance in which the President
the United States.” The State’s assertion that § 1152(a)(1)(A) limits that authority
would mean that the President would be statutorily disabled from barring the entry
of nationals of a country with which the United States was at war—a result that
reject the State’s reading. See Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
c. The State asserts that the Order violates the constitutional rights of
lawful permanent residents (LPRs). Response at 10, 15 & n.3, 16. But the Order
does not apply to LPRs. Exhibit D. It applies only to aliens who lack LPR status.
And most of those aliens are outside the United States and have never been admitted
to this country. The Supreme Court “has long held that an alien seeking initial
admission to the United States requests a privilege and has no constitutional rights
decisions with far greater security implications than this Order.” In those cases,
however, the courts were reviewing government actions taken against individuals
who had rights under the U.S. Constitution or federal statutes with respect to the
adverse actions they faced. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004)
553 U.S. 723 (2008) (reviewing detention of aliens held to have constitutionally
protected interest in habeas corpus review). Those cases do not override the
longstanding rule that aliens outside the United States have no right or interest in
their admission to the United States protected by the Due Process Clause, Knauff,
338 U.S. at 543, or the rule that non-immigrants do not have a liberty or property
i. The State first asserts that the Order violates the Establishment
Clause and equal protection principles because it was assertedly based on animus
against Muslims. That is incorrect. There are two separate aspects of the Order
First, Section 3(c) temporarily suspends entry of aliens from seven countries
by Congress and the Executive Branch as being associated with a heightened risk of
terrorism. Congress itself identified Iraq and Syria, where “the Islamic State of Iraq
state sponsors of terrorism: Iran, Sudan, and Syria. Id. § 1187(a)(12)(A)(i)(II) and
(ii)(II). And in 2016, the Executive Branch added Libya, Somalia, and Yemen after
a review that considered “whether the country or area is a safe haven for terrorists”
and “whether the presence of an alien in the country or area increases the likelihood
that the alien is a credible threat to the national security of the United States.” 8
announces-further-travel-restrictions-visa-waiver-program.
from all countries, not just the seven countries identified in Section 3(c). Section
5(b) further provides that, when the refugee program resumes, the Secretary of State
shall “make changes, to the extent permitted by law, to prioritize refugee claims” by
minority” “are in tune with the Bill of Rights,” Kong v. Scully, 341 F.3d 1132, 1141
(9th Cir. 2003), and Section 5(b) of the Order applies equally to all religious
the district court recognized in Louhghalam, Section 5(b) “could be invoked to give
Accordingly, as the district court held in Louhghalam, Order 13, the Executive
Order is “neutral with respect to religion.” And under Mandel, the Order’s national-
security basis for the temporary suspension amply establishes its constitutionality.
See also Louhghalam, Order 18-19. The State asserts (Response 10) that the Court
should “look behind” the stated basis for the Order to probe its subjective
motivations because the State claims to have made “an affirmative showing of bad
faith.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring). But the State’s allegations
of bad faith are not meaningfully different from the allegations deemed insufficient
in Mandel, where the plaintiff asserted that the visa was denied because of the alien’s
advocacy of revolutionary Marxism and world communism, rather than his failure
to comply with the terms of prior visas. 408 U.S. at 756; see Din, 135 S. Ct. at 2141-
2142 (Kennedy, J., concurring) (endorsing Mandel). And here, the State asks the
authority.
2
Washington relies on Larson v. Valente, 456 U.S. 228 (1982), but that holding
is limited to cases where a government statute or practice “explicitly discriminates
against a certain religious group.” Sep. of Church & State Comm. v. City of Eugene,
ii. The State also argues (Response 14-18) that the order violates
aliens’ procedural due process rights. But as explained above, aliens outside the
United States have no due process rights with respect to their attempt to gain entry
into this country. And regardless, “notice and an opportunity to respond” is not
required where, as here, the challenged rule reflects a categorical judgment. Cf. Bi-
Metallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441, 445 (1915) (“[w]here
a rule of conduct applies to more than a few people,” individuals affected do not
“have a constitutional right to be heard before a matter can be decided”); see also
3. The State argues (Response 7-8) that the injunction does not impose
any irreparable harm. But the injunction reinstates procedures that the President
Order § 1; see also id. § 2. The Order temporarily suspends entry of aliens from
“to prevent infiltration [into this Nation] by foreign terrorists or criminals,” Order
§ 3(c). Similarly, the temporary suspension of the U.S. refugee program will be
lifted after 120 days, once the Secretaries of State and Homeland Security, in
procedures should be taken to ensure that those approved for refugee admission do
not pose a threat to the security and welfare of the United States.” Order § 5(a). The
potential national-security risks and harms resulting from the compelled application
of procedures that the President has determined must be reexamined, for the purpose
is, at a minimum, vastly overbroad. The State has made clear that it is seeking to
protect LPRs and other nationals from the seven identified countries who were
previously admitted to the United States and are either temporarily abroad or are
here now and wish to travel outside this country—not aliens who are attempting to
enter the country for the first time. See Response 11-12, 15-16; Transcript 7-8, 15-
16. That makes sense because the latter class of aliens have no constitutional rights
with respect to entry into the country—a point the State largely conceded below.
See Transcript 7, 15. The injunction, however, bars all applications of Section
3(c)—even as to aliens who have never previously visited this country, and have not
yet begun the process of obtaining a visa. It also bars all applications of Section 5,
even though there is no indication that any of the aliens affected by the temporary
10
suspension of the refugee program have been previously admitted to this country.3
That is plainly impermissible. At most, the injunction should be limited to the class
of individuals on whom the State’s claims rest—previously admitted aliens who are
temporarily abroad now or who wish to travel and return to the United States in the
future.
3
Indeed, the district court even enjoined a provision that will not go into effect
for 120 days, a provision as to which even plaintiffs conceded that their challenge is
not ripe for review. Transcript 15 (Section 5(b) claim “does not necessarily require
immediate injunction”).
11
CONCLUSION
Respectfully submitted,
12
* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing
this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their
former law firm.
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with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using
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Federal Register
Presidential Documents
Title 3—
Executive Order 13769 of January 27, 2017
The President
Protecting the Nation From Foreign Terrorist Entry Into the
United States
Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States
Code, and to protect the American people from terrorist attacks by foreign
individuals with terrorist ties and stopping them from entering the United
States. Perhaps in no instance was that more apparent than the terrorist
And while the visa-issuance process was reviewed and amended after the
visas, these measures did not stop attacks by foreign nationals who were
disaster, and civil unrest increase the likelihood that terrorists will use
any means possible to enter the United States. The United States must
for admission do not intend to harm Americans and that they have no
ties to terrorism.
In order to protect Americans, the United States must ensure that those
admitted to this country do not bear hostile attitudes toward it and its
founding principles. The United States cannot, and should not, admit those
who do not support the Constitution, or those who would place violent
ideologies over American law. In addition, the United States should not
who practice religions different from their own) or those who would oppress
Sec. 2. Policy. It is the policy of the United States to protect its citizens
from foreign nationals who intend to commit terrorist attacks in the United
the information needed from any country to adjudicate any visa, admission,
the individual seeking the benefit is who the individual claims to be and
of State and the Director of National Intelligence, shall submit to the President
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not provide adequate information, within 30 days of the date of this order.
the proper review and maximum utilization of available resources for the
to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the
immigrant and nonimmigrant entry into the United States of aliens from
of such persons for 90 days from the date of this order (excluding those
of this section regarding the information needed for adjudications, the Sec-
retary of State shall request all foreign governments that do not supply
(e) After the 60-day period described in subsection (d) of this section
visas, North Atlantic Treaty Organization visas, C–2 visas for travel to the
United Nations, and G–1, G–2, G–3, and G–4 visas) from countries that
(f) At any point after submitting the list described in subsection (e) of
may submit to the President the names of any additional countries rec-
ommended for similar treatment.
case-by-case basis, and when in the national interest, issue visas or other
(h) The Secretaries of State and Homeland Security shall submit to the
30 days of the date of this order, a second report within 60 days of the
date of this order, a third report within 90 days of the date of this order,
and a fourth report within 120 days of the date of this order.
the United States on a fraudulent basis with the intent to cause harm,
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applicant has the intent to commit criminal or terrorist acts after entering
of State, the Director of National Intelligence, and the Director of the Federal
the progress of this directive within 60 days of the date of this order,
a second report within 100 days of the date of this order, and a third
Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admis-
sions Program (USRAP) for 120 days. During the 120-day period, the Secretary
procedures should be taken to ensure that those approved for refugee admis-
sion do not pose a threat to the security and welfare of the United States,
are already in the USRAP process may be admitted upon the initiation
and completion of these revised procedures. Upon the date that is 120
days after the date of this order, the Secretary of State shall resume USRAP
admissions only for nationals of countries for which the Secretary of State,
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim
of the United States and thus suspend any such entry until such time
as I have determined that sufficient changes have been made to the USRAP
interest.
proclaim that the entry of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United States, and thus suspend
any such entry until such time as I determine that additional admissions
facing religious persecution, when admitting the person would enable the
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(f) The Secretary of State shall submit to the President an initial report
persecution within 100 days of the date of this order and shall submit
(g) It is the policy of the executive branch that, to the extent permitted
law to determine the extent to which, consistent with applicable law, State
of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism
(a) The Secretary of Homeland Security shall expedite the completion and
(a) of this section. The initial report shall be submitted within 100 days
of the date of this order, a second report shall be submitted within 200
days of the date of this order, and a third report shall be submitted within
365 days of the date of this order. Further, the Secretary shall submit
a report every 180 days thereafter until the system is fully deployed and
operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately
suspend the Visa Interview Waiver Program and ensure compliance with
section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all
nonimmigrant visa reciprocity agreements to ensure that they are, with re-
spect to each visa classification, truly reciprocal insofar as practicable with
respect to validity period and fees, as required by sections 221(c) and 281
of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country
reciprocal manner, the Secretary of State shall adjust the visa validity period,
with the American people, and to more effectively implement policies and
practices that serve the national interest, the Secretary of Homeland Security,
law and national security, collect and make publicly available within 180
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States who have been radicalized after entry into the United States and
United States, since the date of this order or the last reporting period,
by foreign nationals, since the date of this order or the last reporting
(iv) any other information relevant to public safety and security as deter-
mined by the Secretary of Homeland Security and the Attorney General,
(b) The Secretary of State shall, within one year of the date of this
Sec. 11. General Provisions. (a) Nothing in this order shall be construed
(ii) the functions of the Director of the Office of Management and Budget
(b) This order shall be implemented consistent with applicable law and
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(c) This order is not intended to, and does not, create any right or benefit,
against the United States, its departments, agencies, or entities, its officers,
Trump.EPS</GPH>
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