No. 17-17168 IN THE United States Court of Appeals for the Ninth Circuit STATE OF HAWAII, et al., Plaintiffs-Appellees, v. DONALD J. TRUMP, et al., Defendants-Appellants. On Appeal from the United States District Court for the District of Hawaii, No. 1:17-cv-00050-DKW-KSC District Judge Derrick K. Watson BRIEF FOR PLAINTIFFS-APPELLEES DOUGLAS S. CHIN Attorney General of the State of Hawaii CLYDE J. WADSWORTH Solicitor General of the State of Hawaii DEIRDRE MARIE-IHA DONNA H. KALAMA KIMBERLY T. GUIDRY Deputy Attorneys General DEPARTMENT OF THE ATTORNEY GENERAL, STATE OF HAWAII 425 Queen Street Honolulu, HI 96813 Counsel for the State of Hawaii November 18, 2017 NEAL KUMAR KATYAL COLLEEN ROH SINZDAK MITCHELL P. REICH ELIZABETH HAGERTY YURI S. FUCHS SUNDEEP IYER* REEDY C. SWANSON** HOGAN LOVELLS US LLP 555 Thirteenth Street NW Washington, DC 20004 Telephone: (202) 637-5600 Email: [email protected]Counsel for Plaintiffs-Appellees (Additional Counsel Listed on Inside Cover) Case: 17-17168, 11/18/2017, ID: 10659834, DktEntry: 51, Page 1 of 80
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No. 17-17168
IN THE
United States Court of Appealsfor the Ninth Circuit
STATE OF HAWAII, et al.,
Plaintiffs-Appellees,v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.
On Appeal from the United States District Courtfor the District of Hawaii, No. 1:17-cv-00050-DKW-KSC
District Judge Derrick K. Watson
BRIEF FOR PLAINTIFFS-APPELLEES
DOUGLAS S. CHINAttorney General of the State of Hawaii
CLYDE J. WADSWORTHSolicitor General of the State of Hawaii
DEIRDRE MARIE-IHADONNA H. KALAMAKIMBERLY T. GUIDRY
Deputy Attorneys GeneralDEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAII425 Queen StreetHonolulu, HI 96813
Counsel for the State of Hawaii
November 18, 2017
NEAL KUMAR KATYALCOLLEEN ROH SINZDAKMITCHELL P. REICHELIZABETH HAGERTYYURI S. FUCHSSUNDEEP IYER*REEDY C. SWANSON**HOGAN LOVELLS US LLP555 Thirteenth Street NWWashington, DC 20004Telephone: (202) 637-5600Email: [email protected]
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEMERITS....................................................................................................13
A. EO-3 Is Reviewable .......................................................................13
B. EO-3 Exceeds The President’s Authority Under8 U.S.C. §§ 1182(f) And 1185(a) ................................................... 20
1. EO-3 does not contain an adequate finding ofdetrimentality .......................................................................22
a. The President must issue a “find[ing]”that supports the conclusion that entrywould be “detrimental”..............................................22
b. EO-3’s findings are inadequate .................................25
2. EO-3 does not exclude aliens whose entrywould be “detrimental to the interests of theUnited States” within the meaning of Section1182(f)..................................................................................29
a. The words “detrimental to the interests ofthe United States” derive meaningfulcontent from their history, purpose, andcontext .......................................................................29
b. The President may find aliens’ entry“detrimental to the interests of the UnitedStates” only if the aliens (1) themselvesthreaten national security or (2) threatencongressional policy in an exigency..........................33
c. The Government’s contrary readingwould subvert the INA and raise graveconstitutional concerns ..............................................43
d. EO-3 exceeds the limits on thePresident’s Section 1182(f) power ............................45
C. EO-3 Violates Section 1152(a)(1)(A)............................................47
D. EO-3 Violates The Establishment Clause......................................54
II. The Remaining Preliminary Injunction Factors Are Met ........................58
A. EO-3 Would Inflict Irreparable Harms On Plaintiffs ....................58
B. The Balance Of The Equities And The Public InterestFavor Relief....................................................................................59
III. A Nationwide Injunction Is Appropriate..................................................60
Abbott Labs. v. Gardner,387 U.S. 136 (1967)............................................................................................18
Abourezk v. Reagan,785 F.2d 1043 (D.C. Cir. 1986)..........................................................................42
Am. Trucking Ass’ns, Inc. v. City of L.A.,559 F.3d 1046 (9th Cir. 2009) ............................................................................58
Arbaugh v. Y&H Corp.,546 U.S. 500 (2006)............................................................................................16
Arizona v. United States,567 U.S. 387 (2012)..........................................................................16, 20, 42, 43
Armstrong v. Exceptional Child Ctr., Inc.,135 S. Ct. 1378 (2015) ........................................................................................ 14
Bennett v. Spear,520 U.S. 154 (1997)............................................................................................17
Bryan v. United States,524 U.S. 184 (1998)............................................................................................39
Burlington Truck Lines, Inc. v. United States,371 U.S. 156 (1962)............................................................................................22
Califano v. Yamasaki,442 U.S. 682 (1979)............................................................................................60
Carlson v. Landon,342 U.S. 524 (1952)......................................................................................31, 44
Catholic League for Religious & Civil Rights v. City & Cty. of S.F.,624 F.3d 1043 (9th Cir. 2010) (en banc) ............................................................20
Chamber of Commerce of U.S. v. Reich,74 F.3d 1322 (D.C. Cir. 1996)......................................................................14, 17
Chisom v. Roemer,501 U.S. 380 (1991)............................................................................................39
Dada v. Mukasey,554 U.S. 1 (2008)................................................................................................50
Dalton v. Specter,511 U.S. 462 (1994)......................................................................................19, 23
Dames & Moore v. Regan,453 U.S. 654 (1981).....................................................................................passim
DHX, Inc. v. Allianz AGF MAT, Ltd.,425 F.3d 1169 (9th Cir. 2005) ............................................................................13
EC Term of Years Trust v. United States,550 U.S. 429 (2007)............................................................................................41
Franklin v. Massachusetts,505 U.S. 788 (1992)............................................................................................17
Galvan v. Press,347 U.S. 522 (1954)................................................................................16, 20, 45
Gonzales v. Oregon,546 U.S. 243 (2006)............................................................................................44
Gratz v. Bollinger,539 U.S. 244 (2003)............................................................................................14
Gulf States Util. Co. v. Fed. Power Comm’n,411 U.S. 747 (1973)............................................................................................32
Haig v. Agee,453 U.S. 280 (1981)..........................................................................31, 33, 34, 37
Hall Street Assocs. v. Mattel, Inc.,552 U.S. 576 (2008)............................................................................................41
Hawaii v. Trump,241 F. Supp. 3d 1119 (D. Haw. 2017)................................................................55
Hawaii v. Trump,245 F. Supp. 3d 1227 (D. Haw. 2017)............................................................3, 54
Hawaii v. Trump,859 F.3d 741 (9th Cir. 2017) .......................................................................passim
INS v. Nat’l Ctr. for Immigrants’ Rights,502 U.S. 183 (1991)............................................................................................31
IRAP v. Trump,2017 WL 4674314 (D. Md. Oct. 17, 2017) ..............................................8, 51, 54
IRAP v. Trump,857 F.3d 554 (4th Cir. 2017) (en banc) ..................................................53, 54, 55
Jama v. Immigration & Customs Enf’t,543 U.S. 335 (2005)............................................................................................30
Jean v. Nelson,472 U.S. 846 (1985)................................................................................12, 52, 53
Kent v. Dulles,357 U.S. 116 (1958).....................................................................................passim
Kerry v. Din,135 S. Ct. 2128 (2015)........................................................................................46
Kim Ho Ma v. Ashcroft,257 F.3d 1095 (9th Cir. 2001) ............................................................................31
Kleindienst v. Mandel,408 U.S. 753 (1972)............................................................................................54
Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State,45 F.3d 469 (D.C. Cir. 1995)..................................................................18, 47, 51
Lichter v. United States,334 U.S. 742 (1948)......................................................................................21, 34
Loving v. Virginia,388 U.S. 1 (1967)................................................................................................53
Mahler v. Eby,264 U.S. 32 (1924)............................................................................31, 32, 34, 44
Marbury v. Madison,5 U.S. (1 Cranch) 137 (1803) ...............................................................................2
Matthews v. Diaz,426 U.S. 67 (1976)..............................................................................................30
McCreary Cty. v. ACLU,545 U.S. 844 (2005)..........................................................................54, 55, 57, 58
N.Y. Cent. Sec. Corp. v. United States,287 U.S. 12 (1932)..............................................................................................32
Nat’l Broad. Co. v. United States,319 U.S. 190 (1943)............................................................................................32
Olsen v. Albright,990 F. Supp. 31 (D.D.C. 1997)...........................................................................53
RadLAX Gateway Hotel, LLC v. Amalgamated Bank,132 S. Ct. 2065 (2012)........................................................................................50
Reno v. American-Arab Anti-Discrimination Committee,525 U.S. 471 (1999)............................................................................................23
Romero v. INS,39 F.3d 977 (9th Cir. 1994) ................................................................................31
Saavedra Bruno v. Albright,197 F.3d 1153 (D.C. Cir. 1999)..........................................................................19
Sale v. Haitian Ctrs. Council, Inc.,509 U.S. 155 (1993)......................................................................................15, 23
Sekhar v. United States,133 S. Ct. 2720 (2013)..................................................................................33, 51
Sierra Club v. Bosworth,510 F.3d 1016 (9th Cir. 2007) ............................................................................60
Trump v. Int’l Refugee Assistance Project,137 S. Ct. 2080 (2017) (per curiam).....................................................................4
United Dominion Indus., Inc. v. United States,532 U.S. 822 (2001)............................................................................................50
United States v. Curtiss-Wright Export Corp.,299 U.S. 304 (1936)......................................................................................44, 45
United States v. Juvenile Male,670 F.3d 999 (9th Cir. 2012) ..............................................................................50
United States v. Lowden,308 U.S. 225 (1939)............................................................................................32
United States v. Witkovich,353 U.S. 194 (1957).....................................................................................passim
United States ex rel. Knauff v. Shaughnessy,338 U.S. 537 (1950).....................................................................................passim
U.S. Army Corps of Engineers v. Hawkes Co.,136 S. Ct. 1807 (2016)........................................................................................18
Util. Air Regulatory Grp. v. EPA,134 S. Ct. 2427 (2014)..................................................................................43, 60
Washington v. Trump,847 F.3d 1151 (9th Cir. 2017) (per curiam) ................................................passim
Webster v. Doe,486 U.S. 592 (1988)............................................................................................23
Whitman v. Am. Trucking Ass’ns,531 U.S. 457 (2001)............................................................................................32
Wong Wing Hang v. INS,360 F.2d 715 (2d Cir. 1966) ...............................................................................53
Youngstown Sheet & Tube Co. v. Sawyer,343 U.S. 579 (1952)............................................................................................47
Zadvydas v. Davis,533 U.S. 678 (2001)............................................................................................31
Zemel v. Rusk,381 U.S. 1 (1965).........................................................................................passim
Ziglar v. Abbasi,137 S. Ct. 1843 (2017)........................................................................................59
Zivotofsky ex rel. Zivotofsky v. Kerry,135 S. Ct. 2076 (2015)........................................................................................45
U.S. Dep’t of State Bull. No. 2116, Cuba: New Migration and EmbargoMeasures 86-87 (Nov. 1986)..............................................................................40
U.S. Dep’t of Homeland Security, Fact Sheet: The President’s Proclamation(Sept. 24, 2017)...................................................................................................17
U.S. Dep’t of State, Presidential Proclamation on Visas (Oct. 17, 2017)..............17
U.S. Dep’t of State, Directory of Visa Categories...................................................26
Antonin Scalia & Bryan A. Garner, Reading Law (2012) ......................................33
Cong. Research Serv., Executive Authority to Exclude Aliens: In Brief(2017)..................................................................................................................40
On the same day the Plaintiffs filed their amended complaint, they moved
for a Temporary Restraining Order (TRO) against the provisions of EO-3 banning
entry from every targeted country except Venezuela and North Korea. See ER
379.1
On October 17, 2017, the District Court granted a TRO. ER 8-9. It held, at
the outset, that each Plaintiff had standing to challenge EO-3. It found the order
would “hinder the University from recruiting and retaining a world-class faculty
and student body,” impair the individual Plaintiffs from reuniting with their
relatives, and harm the Association’s membership and finances. ER 17-26. The
Court “ha[d] little trouble” rejecting the Government’s various challenges
regarding statutory standing, ripeness, and reviewability. ER 26-29.
On the merits, the District Court concluded that Plaintiffs were likely to
succeed in showing that EO-3 violates the Immigration and Nationality Act
(“INA”). ER 31. The court found that EO-3 likely exceeds the limits on the
1 Plaintiffs do not challenge the order’s ban on North Korean nationals because“North Korean person[s]” are already excluded pursuant to a separate sanctionsorder that is not part of this challenge, Exec. Order No. 13,810 § 1(a)(iv) (Sept. 25, 2017), and because the current state of relations with North Korea presents the sortof exigent circumstance previously found to justify a suspension on entry, see infrapp. 40-41, 50-52. The President’s decision to apply the ban only to certainVenezuelan officials distinguishes that country from the other nations affected bythe ban.
President’s suspension authority under Sections 1182(f) and 1185(a) because its
“findings are inconsistent with and do not fit the restrictions that the order actually
imposes.” ER 31-39. The court also found that “EO-3 attempts to do exactly what
Section 1152 prohibits” by “singling out immigrant visa applicants seeking entry to
the United States on the basis of nationality.” ER 39-41. The Court found it
unnecessary to address Plaintiffs’ constitutional claims. ER 25.
The District Court found that the remaining TRO factors were satisfied.
Plaintiffs had “identif[ied] a multitude of harms that are * * * irreparable,”
including “prolonged separation from family members” and “constraints to
recruiting and retaining students and faculty members.” ER 42. In contrast,
Defendants “are not likely harmed by having to adhere to immigration procedures
that have been in place for years.” ER 43. “[C]arefully weighing the harms,” the
court concluded that “the equities tip in Plaintiffs’ favor,” and issued “[n]ationwide
relief.” ER 43-44.2
On October 20, 2017, the parties jointly stipulated that the TRO should be
converted to a preliminary injunction. D. Ct. Dkt. 389. This appeal followed.
2 The same day that the District Court issued its decision, the District Court for theDistrict of Maryland concluded that EO-3 violated Section 1152(a)(1)(A) and theEstablishment Clause and issued an order largely enjoining EO-3’simplementation. IRAP v. Trump, 2017 WL 4674314 (D. Md. Oct. 17, 2017),appeal docketed, No. 17-2240 (4th Cir. Oct. 23, 2017).
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
A. EO-3 Is Reviewable.
The District Court properly held that Plaintiffs statutory and constitutional
claims are reviewable. ER 17-30. The Government’s contrary arguments merely
reiterate contentions this Court has soundly rejected once—and in some
circumstances twice—before. It should reject them again.3
1. Plaintiffs’ Article III standing is beyond serious dispute. The State, “as
the operator of the University of Hawai‘i system, will suffer proprietary injuries”
because of EO-3’s impact on current and prospective students, faculty, and
speakers. ER 17-19; see Washington, 847 F.3d at 1161. The individual Plaintiffs
will be impeded from reuniting with close family members who have applied for
visas. ER 19-23. The Association will lose members, visitors, and revenue. ER
23-26. Each harm is actual and imminent, directly traceable to EO-3, and
redressable by the order’s invalidation.
3 Although this panel’s prior opinion was vacated because of mootness, theSupreme Court “express[ed] no view on the merits,” Hawaii, 2017 WL 4782860,at *1, and the opinion therefore retains “informational and perhaps even persuasiveor precedential value,” DHX, Inc. v. Allianz AGF MAT, Ltd., 425 F.3d 1169, 1176(9th Cir. 2005) (Beezer, J., concurring) (collecting cases). This Court’s earlierdecision in Washington remains binding precedent.
aliens from the high seas.” Id. at 160.4 Likewise, in Knauff, the Court reviewed
whether restrictions on entry imposed under the immediate predecessor of Section
1182(f) were “‘reasonable’ as they were required to be by the 1941 Act” and
complied with the War Brides Act. 338 U.S. at 544-547.
The Government claims (at 20) that “permitting review of a statutory
challenge to the President’s decision” would “invert the constitutional structure.”
That gets things exactly backwards. The Constitution gives Congress
“exclusive[]” authority to set immigration policy, Arizona v. United States, 567
U.S. 387, 409 (2012) (quoting Galvan v. Press, 347 U.S. 522, 531 (1954)), and
requires the President to act within the confines of the authority delegated to him.
The notion that the Judiciary cannot prevent the President from transgressing his
lawful authority—no matter how brazen the statutory violation—“runs contrary to
the fundamental structure of our constitutional democracy.” Washington, 847 F.3d
at 1161.
b. The Government contends (at 23) that judicial review is unavailable
because Defendants have not taken “final agency action.” 5 U.S.C. § 704. Not so.
4 The Government (at 22) calls this a “drive-by jurisdictional ruling.” That isplainly incorrect. The Solicitor General in Sale argued at length that the plaintiffs’claims were barred by the doctrine of consular nonreviewability. U.S. Br. 13-18(No. 92-344); Oral Arg. Tr., 1993 WL 754941, at *16-22. Even though the partiesextensively “cross[ed] swords” over the issue, Arbaugh v. Y&H Corp., 546 U.S.500, 512 (2006), not one Justice accepted the argument, and the Court reviewedthe plaintiffs’ claims on the merits.
The President has made the final decision to promulgate EO-3. Although the
President is not an “agency,” the Court retains equitable authority to enjoin actions
taken by the President in excess of his statutory authority. Chamber of Commerce,
74 F.3d at 1327-28; see, e.g., Dames & Moore, 453 U.S. at 667.
Furthermore, the Department of State and the Department of Homeland
Security have made a final decision to “enforce the President’s directive,” and
Plaintiffs may obtain “[r]eview of the legality of [the President’s] action” that way.
Franklin v. Massachusetts, 505 U.S. 788, 828 (1992) (Scalia, J., concurring); see
id. at 803 (majority opinion). In particular, on September 24, both agencies began
enforcing portions of EO-3 against aliens who lack a bona fide relationship with a
U.S. person or entity, Br. 11 (citing EO-3 § 7); after those actions were temporarily
halted by the District Court on October 17, the agencies resumed enforcement on
November 13 pursuant to this Court’s partial stay. Dkt. 39. Furthermore, each
agency has issued detailed guidance directing officers how to implement EO-3 in
full if the injunction is lifted.5 Defendants have thus “consummate[ed]” their
decision to implement the order, and are inflicting—and, if the injunction is lifted,
will further inflict—real “legal consequences” by virtue of that unlawful action.
Bennett v. Spear, 520 U.S. 154, 177-178 (1997).
5 See U.S. Dep’t of State, Presidential Proclamation on Visas (Oct. 17, 2017),https://goo.gl/HoNiNz; U.S. Dep’t of Homeland Security, Fact Sheet: ThePresident’s Proclamation (Sept. 24, 2017), https://goo.gl/gaiEpi.
activities” against the United States or its allies,6 committing severe violations of
international law,7 or attempting to enter the country “illegally.”8 Those findings,
while brief, plainly supported the exclusion of the culpable aliens. Sale is no
exception: The order there barred aliens whose entry was already “illegal,” and the
only question the Court found “irrelevant” to the Section 1182(f) analysis
concerned whether the order “pose[d] * * * harm” to the aliens excluded. 509 U.S.
at 187-188.
The Government is also incorrect in suggesting (at 29) that the President can
dispense with Section 1182(f)’s “finding” requirement simply by invoking his
authority under Section 1185(a). Section 1185(a)(1) grants the President general
authority to “prescribe” “reasonable rules, regulations, and orders” regarding entry
and departure. Section 1182(f), in turn, sets the parameters for the President’s
power to suspend entry. Under established principles of statutory interpretation,
the more general authority in Section 1185(a) cannot be used to evade the
preconditions in Section 1182(f). See Hawaii, 859 F.3d at 770 n.10. Nor has any
prior President attempted to circumvent Section 1182(f)’s requirements through
6 Proc. 5887 (1988); see Proc. 5829 (1988).7 Proc. 8342 (2009) (human trafficking); Proc. 6958 (1996) (shelteringinternational terrorists).8 Exec. Order No. 12,807 (1992); see also Proc. 8693 (2011) (excluding aliensfalling into all three groups).
Section 1185(a); every previous order suspending a class of aliens has both
invoked Section 1182(f) and offered some finding in support of the exclusion.9
b. EO-3’s findings are inadequate.
EO-3’s findings fail to support the sweeping restrictions the President has
imposed. The principal reason the order gives for banning every national of six
countries is that those nations lack adequate “identity-management and
information-sharing protocols and practices” to provide the United States
“sufficient information to assess the risks” that their nationals pose. EO-3
§ 1(h)(i). As the District Court explained, that finding is wholly inadequate for at
least three reasons.
First, the law already addresses the problem the President identifies. ER 35.
“As the law stands, a visa applicant bears the burden of showing that the applicant
is eligible to receive a visa,” and “[t]he Government already can exclude
individuals who do not meet that burden.” Hawaii, 859 F.3d at 773; see 8 U.S.C.
§ 1361. Contrary to the Government’s suggestion (at 37), EO-3 fails to identify
any respect in which this individualized adjudication process is “insufficiently
protective.” It states only that the targeted countries “have ‘inadequate’ * * *
9 The Government points (at 31) to President Carter’s 1979 order, but that orderdid not suspend entry at all; it simply delegated the President’s powers underSection 1185(a)(1) with respect to Iranian visa-holders. Exec. Order No. 12,172,§ 1-101 (1979).
President’s power. Id. at 127-128; see Zemel, 381 U.S. at 17-18 (“reaffirm[ing]”
this holding); Haig v. Agee, 453 U.S. 280, 297-298 (1981) (same).10
The Supreme Court and this Court have “read significant limitations into
other immigration statutes.” Zadvydas v. Davis, 533 U.S. 678, 689 (2001); see
Kim Ho Ma v. Ashcroft, 257 F.3d 1095, 1106 (9th Cir. 2001). In Witkovich, the
Court held that the Attorney General’s “seemingly limitless” authority to “require
whatever information he deems desirable of aliens” authorized only those
questions relevant to the statute’s “purpose” of assessing “deporta[bility].” 353
U.S. at 199-200. In Mahler v. Eby, 264 U.S. 32 (1924), the Court held that a
statute granting officers authority to deport any aliens they “find[] * * * [to be]
undesirable residents of the United States” needed to be read in light of the
“declared policy of Congress” and “previous legislation of a similar character,”
which gave the words “the quality of a recognized standard.” Id. at 40. Other
examples abound.11
This interpretive approach applies with particular force to statutes granting
authority to act in “the public interest” or “the interests of the United States.” The
10 Although Kent noted that a contrary reading might raise First Amendmentconcerns, Zemel and Haig explicitly rejected such arguments and relied on thestatute’s text and history alone. See Zemel, 381 U.S. at 16-17; Haig, 453 U.S. 308.11 See, e.g., Zadvydas, 533 U.S. at 689; INS v. Nat’l Ctr. for Immigrants’ Rights,502 U.S. 183, 191-194 (1991); Carlson v. Landon, 342 U.S. 524, 543-544 (1952);Kim Ho Ma, 257 F.3d at 1111; Romero v. INS, 39 F.3d 977, 980-981 (9th Cir.1994).
Court has long made clear that “[i]t is a mistaken assumption” that broad
formulations like these make “a mere general reference to public welfare without
any standard to guide determinations.” N.Y. Cent. Sec. Corp. v. United States, 287
U.S. 12, 24 (1932). Rather, such words are invariably limited by “ascertainable
criteria” derived from “[t]he purpose of the Act, the requirements it imposes, and
the context of the provision in question.” Id. at 24-25; see Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 474 (2001) (“[W]e have found an ‘intelligible
principle’ in various statutes authorizing regulation in the ‘public interest.’”).12
These same principles govern the interpretation of Section 1182(f). That
statute confers authority in “broad terms”: It authorizes the President to exclude
aliens found “detrimental to the interests of the United States.” But this language
is no broader—indeed, in some cases narrower—than provisions conveying power
to make passport rules “on behalf of the United States,” Kent, 357 U.S. at 123,
demand information “deem[ed] fit and proper,” Witkovich, 353 U.S. at 195,
exclude “undesirable residents of the United States,” Mahler, 264 U.S. at 40, or act
in “the public interest,” N.Y. Cent. Sec. Corp., 287 U.S. at 24. Congress has made
clear that those statutes “derive * * * meaningful content” from their history,
purpose, and context. Knauff, 338 U.S. at 543. Section 1182(f) must, as well.
12 See, e.g., United States v. Lowden, 308 U.S. 225, 230 (1939); Nat’l Broad. Co.v. United States, 319 U.S. 190, 216 (1943); Gulf States Util. Co. v. Fed. PowerComm’n, 411 U.S. 747, 757-762 (1973).
b. The President may find aliens’ entry “detrimental to theinterests of the United States” only if the aliens (1)themselves threaten national security or (2) threatencongressional policy in an exigency.
And every source of Section 1182(f)’s meaning speaks with a single voice.
Congress intended to permit the President to find aliens’ entry “detrimental to the
interests of the United States” in only two broad circumstances: where (1) the
aliens themselves pose a threat to national security (such as spies, saboteurs, and
war criminals); or (2) the aliens more broadly threaten congressional policy when
Congress cannot practicably act (such as during a fast-moving diplomatic crisis,
war, or national emergency). These limits are reflected in the settled meaning of
the statute’s words at the time of Section 1182(f)’s enactment, the drafters’ express
and repeated statements of purpose, nearly a century of practice, and the context
provided by both the statutory structure and the constitutional separation of
powers.
i. Text. Start with the words of the statute. It is a basic principle of
statutory construction that when Congress enacts a phrase that “has been given a
uniform interpretation by inferior courts or the responsible agency,” a later statute
“perpetuating the wording is presumed to carry forward that interpretation.”
Antonin Scalia & Bryan A. Garner, Reading Law 322 (2012); see Sekhar v. United
States, 133 S. Ct. 2720, 2724 (2013). Applying this principle in Kent, Zemel, and
Haig, for instance, the Supreme Court held that a passport statute enacted in 1918,
(emphasis added). President Roosevelt and his administration then issued
regulations excluding several “[c]lasses of aliens whose entry [wa]s deemed to be
prejudicial to the interests of the United States.” 6 Fed. Reg. 5929, 5931 (Nov. 22,
1941) (emphases added); see Proc. 2523, § 3 (1941). Just as in President Wilson’s
order, those “classes” consisted exclusively of aliens who themselves threatened
national security, such as spies and saboteurs. 22 C.F.R. § 58.47(b)-(h) (1941); see
also id. § 58.47(a) (excluding aliens who were already statutorily inadmissible).
Importantly, the regulations also added a catchall category, authorizing the
exclusion of “[a]ny alien * * * in whose case circumstances of a similar character
may be found to exist, which render the alien’s admission prejudicial to the
interests of the United States, which it was the purpose of the act of June 21, 1941
* * * to safeguard.” Id. § 58.47(i) (emphasis added).
President Truman continued the same practice. In 1945, his administration
marginally broadened the “[c]lasses of aliens” deemed “prejudicial to the interests
of the United States” to include “war criminal[s].” 10 Fed. Reg. 8997, 9000-01
(July 21, 1945).13 And in 1949, the President “ratified and confirmed” the wartime
regulations by proclamation. Proc. 2850 (1949).
13 Pursuant to the Alien Enemies Act, the regulations were also expanded toinclude “enemy aliens” aged fourteen or older. 22 C.F.R. § 58.53(i) (1945); see 50U.S.C. § 21.
Accordingly, when Congress enacted the INA in 1952, it acted against an
unbroken practice—spanning two World Wars, six Presidents, and the outbreak of
the Korean War and the Cold War—under which only two broad “class[es] of
aliens” were designated as “prejudicial to the interests of the United States.”
Presidents had excluded aliens akin to subversives, spies, and war criminals who
themselves posed a threat to national security. And at least since 1941, Presidents
had reserved residual authority, in times of war and emergency, to bar the entry of
other aliens when “circumstances of a similar character” applied and when the
exclusion was necessary to vindicate “the purpose of the act.” No President
claimed or exercised broader powers.
Congress drafted Section 1182(f) and 1185(a) in a manner that incorporated
those historical limits. In Section 1185, it reenacted without relevant change the
wartime statute under which Presidents Wilson, Roosevelt, and Truman had issued
their regulations and proclamations. Immigration and Nationality Act of 1952,
Pub. L. 82-414, § 215(a).14 And in Section 1182(f), it borrowed the operative
14 Section 1185 also gave the President a broader suite of powers in time of war ornational emergency, including the authority to regulate the entry and departure ofcitizens and set passport rules. In 1978, as part of a revision of the President’sauthority over “[t]ravel [d]ocumentation,” Congress made Section 1185 applicableoutside of war and national emergency. Foreign Relations Authorization Act,Fiscal Year 1979, Pub. L. 95-426, § 707(a) (1978). As noted above, Section1185(a) has never been invoked as a standalone authority to suspend entry, and thefact that it shares its origins with Section 1182(f) further demonstrates that
activities.” Id. at 5386 (statement of Rep. Van Nuys); see id. at 5048 (statement of
Director Shipley).
As noted above, Presidents Roosevelt and Truman fulfilled that promise.
See supra pp. 34-35. And in 1952, when Congress borrowed the express terms of
the wartime regulations to create Section 1182(f), the provision attracted almost no
debate—itself a telling indication that Congress did not intend to confer a vast
power it had previously been assured the President did not possess. See Chisom v.
Roemer, 501 U.S. 380, 396 & n.23 (1991) (“Congress’ silence in this regard can be
likened to the dog that did not bark.”).15 The sole explanation by the bill’s
supporters reaffirmed the statute’s longstanding objective: Representative Walter,
the House sponsor, stated that Section 1182(f) was “essential” because it would
permit the President to suspend entry during an exigency, like an “epidemic” or
economic crisis, in which “it is impossible for Congress to act.” 98 Cong. Rec.
4423 (1952).
iii. Executive practice. Presidential practice since 1952 provides further
support for this reading. Of the dozens of exclusion orders issued under Section
15 Some opponents of the INA made statements expressing concern that Section1182(f) would vest the President with unbounded authority. None of the Act’ssupporters affirmed these descriptions, and they are not probative. See Bryan v.United States, 524 U.S. 184, 196 (1998) (“The fears and doubts of the oppositionare no authoritative guide to the construction of legislation. In their zeal to defeat abill, they understandably tend to overstate its reach.” (citations omitted)).
dynamic and fast-moving diplomatic crisis that, by its nature, was difficult for
Congress to “swiftly” address. Zemel, 381 U.S. at 17. And it sought to further a
longstanding congressional policy in favor of normalizing relations with Cuba “on
a reciprocal basis.” Foreign Relations Authorization Act, Fiscal Year 1978, Pub.
L. 95-105, § 511 (1977).16
iv. Statutory context. The surrounding provisions of the INA further
reinforce this reading. Section 1182(f) appears after a long and exceptionally
detailed list of “[c]lasses of aliens” whom Congress wished to exclude from the
United States, within a yet more comprehensive and finely reticulated immigration
code. 8 U.S.C. § 1182(a). Under the noscitur a sociis canon, it is presumed that
Section 1182(f) authorizes the President to exclude “classes of aliens” similar in
kind to the categories that precede it. Hall Street Assocs. v. Mattel, Inc., 552 U.S.
576, 586 (2008). Moreover, Congress presumably intended for the President to be
able to supplement, but not “effortlessly evade,” the statute’s “specifically
tailored” criteria for inadmissibility. EC Term of Years Trust v. United States, 550
U.S. 429, 434 (2007).
16 President Carter’s 1979 Iran order did not suspend entry and was not issuedpursuant to Section 1182(f). See supra p. 25 n.9. But it too involved an“international cris[i]s”—the imprisonment of over 50 Americans as hostages—thatthe Supreme Court has recognized required swift presidential action. Dames &Moore, 453 U.S. at 669.
and 1185(a), which set out “general” parameters for the President’s authority to
regulate admission. RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 132 S.
Ct. 2065, 2071 (2012). Section 1152(a)(1)(A) was enacted more than a decade
later than either of the other provisions.18 See United States v. Juvenile Male, 670
F.3d 999, 1008 (9th Cir. 2012). And Section 1152(a)(1)(A) contains several
express exceptions—some of surpassing obscurity—that do not include Sections
1182(f) and 1185(a). See 8 U.S.C. § 1152(a)(1)(A)-(B); see also United Dominion
Indus., Inc. v. United States, 532 U.S. 822, 836 (2001) (“[T]he mention of some
implies the exclusion of others not mentioned.”).
Ultimately, all of the Government’s theories would impermissibly turn
Section 1152 into a “nullity.” Dada v. Mukasey, 554 U.S. 1, 16 (2008). Under any
of these readings, the President could evade Section 1152(a)(1)(A) and engage in
nationality discrimination at will. As this Court observed, Congress plainly did not
intend to “enable the President to restore [the] discrimination on the basis of
nationality that Congress sought to eliminate.” Hawaii, 859 F.3d at 777.
The Government insists (at 48) that Section 1152(a)(1)(A) may not limit the
President’s Section 1182(f) powers because that would mean “the President cannot
temporarily suspend the entry of aliens * * * even if he is aware of a grave threat
18 The Government gestures (at 49) towards the 1978 revisions to Section 1185(a),but nothing in those amendments remotely suggests an intent to repeal or limitSection 1152(a)(1)(A).
hostage crisis, and even then it did not itself impose any restrictions on entry. See
supra p. 41 n.16. Similarly, President Reagan’s Cuba order was issued during a
dynamic diplomatic dispute, after lesser sanctions had failed and it became obvious
that the Cuban government was grossly abusing the visa process. See supra pp.
40-41. Neither order offers support for using nationality-based discrimination to
“incentivize foreign nations” in the absence of an exigency.19
3. In short, Section 1152(a)(1)(A) plainly prohibits national-origin
discrimination as to aliens seeking immigrant visas. But the statute also reflects
robust congressional opposition to any nationality-based discrimination in the
issuance of visas. Congress enacted this provision to abolish the “national origins
system” for selecting entrants to this country. Hawaii, 859 F.3d at 776 (quoting
H.R. Rep. No. 89-745, at 8). Accordingly, since the statute’s enactment, courts
have held that the Executive is barred, except in exceptional circumstances or
where expressly authorized by Congress, from drawing nationality-based
distinctions for immigrants and nonimmigrants alike. In Jean, for example, the
Supreme Court held that immigration officers generally must implement grants of
“broad statutory discretion * * * without regard to race or national origin.” 472
19 The Government briefly suggests (at 49) that EO-3 merely sets “procedures forthe processing of immigrant visa applications,” 8 U.S.C. § 1152(a)(1)(B), but it does not even attempt to explain how a ban on issuing visas to nationals of certaincountries may be viewed as a “procedure[] * * * for processing” those visas. SeeHawaii, 859 F.3d at 779.
If this Court did somehow find that EO-3 is consistent with the immigration
laws, the injunction should nonetheless be affirmed on constitutional grounds. See
Hawaii, 859 F.3d at 761 (explaining that the Court “need not * * * reach the
[constitutional] claim[s]” if the injunction “can be affirmed * * * on statutory
grounds”). As the Ninth Circuit held in evaluating EO-1, “[a] law that has a
religious, not secular, purpose violates” the Establishment Clause. Washington,
847 F.3d at 1167 (internal quotation marks, alterations, and citations omitted).
Multiple courts, including the en banc Fourth Circuit, concluded that plaintiffs
were likely to succeed on the claim that EO-2 was intended to serve the
unconstitutional purpose of preventing Muslim immigration. IRAP, 857 F.3d at
601; Hawaii, 245 F. Supp. 3d at 1230. EO-3, which on its face and in substance
continues the unlawful policies of EO-2, suffers from the same defect. IRAP, 2017
WL 4674314, at *27-37.
The constitutional analysis in this instance is particularly straightforward.20
The Establishment Clause inquiry focuses on purpose as it would be understood by
a “reasonable observer.” McCreary Cty. v. ACLU, 545 U.S. 844, 864 (2005). It
20 In the past, the Government’s primary defense has been to ask the Court to lookaway, relying on Kleindienst v. Mandel, 408 U.S. 753 (1972). But this Court hasalready rejected Mandel’s application to “sweeping proclamations” like EO-3.Washington, 847 F.3d at 1166. And, as another court recently held, EO-3 cannotpass muster even if Mandel applies. IRAP, 2017 WL 4674314, at *27-37.
The Government’s demand (at 52) that the injunction be narrowed to
“identified individual alien[s] abroad” is irreconcilable with these authorities. It is
also wholly impracticable. See Washington, 847 F.3d at 1166. Plaintiffs cannot
identify in advance precisely which individuals may wish to enroll in the State’s
University or join the Association, or would be chilled by EO-3 from doing so.21
The President’s lawless and discriminatory bans harm countless Americans and
their relations abroad. They should not be permitted to go into effect anywhere.
CONCLUSION
For the foregoing reasons, the District Court’s injunction should be affirmed
in full.
DOUGLAS S. CHINAttorney General of the State of Hawaii
CLYDE J. WADSWORTHSolicitor General of the State of Hawaii
DEIRDRE MARIE-IHADONNA H. KALAMAKIMBERLY T. GUIDRYROBERT T. NAKATSUJIKALIKO‘ONALANI D. FERNANDESKEVIN M. RICHARDSON
Respectfully submitted,
/s/ Neal Kumar Katyal
NEAL KUMAR KATYALCOLLEEN ROH SINZDAKMITCHELL P. REICHELIZABETH HAGERTYYURI S. FUCHSSUNDEEP IYER*REEDY C. SWANSON**HOGAN LOVELLS US LLP555 Thirteenth Street NWWashington, DC 20004
21 The Government’s alternative suggestion (at 53) that the injunction be limited toaliens with “bona fide relationship with a person or entity in the United States” wasnot raised below, and so is forfeited. And as the Government acknowledges, thatstandard arose in “very different” circumstances that do not apply here.