throbber
No. 17-965
`
`IN THE
`Supreme Court of the United States
`___________________
`
`DONALD J. TRUMP, ET AL.,
`Petitioners,
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`STATE OF HAWAII, ET AL.,
`
`
`
`Respondents.
`________________
`
`On Writ of Certiorari to the
`United State Court of Appeals
`for the Ninth Circuit
`________________
`
`BRIEF OF MEMBERS OF CONGRESS AS AMICI
`CURIAE IN SUPPORT OF RESPONDENTS
`________________
`
`PETER KARANJIA
`GEOFFREY BROUNELL
` DAVIS WRIGHT TREMAINE
` LLP
` 1919 Pennsylvania Ave., NW
` Suite 800
` Washington, D.C. 20006
` (202) 973-4256
` peterkaranjia@dwt.com
`
`ELIZABETH B. WYDRA
`BRIANNE J. GOROD
` Counsel of Record
`DAVID H. GANS
`CONSTITUTIONAL
` ACCOUNTABILITY CENTER
`1200 18th Street, NW, Suite 501
`Washington, D.C. 20036
`(202) 296-6889
`brianne@theusconstitution.org
`
`Counsel for Amici Curiae
`(Additional Counsel on Inside Cover)
`
`
`
`
`
`
`
`
`
`
`
`

`

`VICTOR A. KOVNER
`DAVIS WRIGHT
`TREMAINE
` LLP
`1251 Avenue of the Americas,
`21st Floor
` New York, NY 20020
`
`RAYMOND H. BRESCIA
`Professor of Law*
`ALBANY LAW SCHOOL
`80 New Scotland Ave.
`Albany, NY 12208
`*For affiliation purposes only
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`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES .................................
`
`iii
`
`INTEREST OF AMICI CURIAE ..........................
`
`SUMMARY OF ARGUMENT ...............................
`
`1
`
`1
`
`6
`
`6
`
`9
`
`ARGUMENT .........................................................
`I. SEPARATION-OF-POWERS
`PRINCIPLES DO NOT PERMIT THE
`PRESIDENT TO WRITE RELIGIOUS
`DISCRIMINATION INTO OUR
`NATION’S IMMIGRATION LAWS ...........
`II. THE PROCLAMATION RUNS AFOUL
`OF THE IMMIGRATION AND
`NATIONALITY ACT ..................................
`A. The Proclamation Subverts a
`Carefully Crafted Legislative
`Scheme Designed To Prevent
`Potential Terrorists from
`Entering the United States ............. 11
`B. The Proclamation Violates the
`INA’s Categorical Prohibition on
`Nationality-Based Discrimination .. 16
`III. THE PROCLAMATION RUNS
`AFOUL OF THE ESTABLISHMENT
`CLAUSE ................................................ 20
`A. The Text and History of the
`Religion Clauses Forbid Laws
`That Target a Disfavored
`Religious Minority for
`Discriminatory Treatment .............. 20
`
`(i)
`
`

`

`ii
`
`TABLE OF CONTENTS – cont’d
`
`Page
`
`B. The Constitution’s Command of
`Religious Neutrality Squarely
`Applies to Immigration
`Regulations ...................................... 27
`C. The Proclamation Violates the
`Central Meaning of the First
`Amendment ...................................... 31
`
`CONCLUSION ................................................ 34
`
`APPENDIX: LIST OF AMICI ......................... 1A
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`

`

`iii
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`
`
`Cases
`
`Arizona v. United States,
`567 U.S. 387 (2012) ................................. 6, 8
`
`Bd. of Educ. of Kiryas Joel Vill. Sch.
`Dist. v. Grumet,
`512 U.S. 687 (1994) ............. 20, 25, 26, 31, 32
`
`Boumediene v. Bush,
`553 U.S. 723 (2008) ................................. 4, 6
`
`Carlson v. Landon,
`342 U.S. 524 (1952) ...................................
`
`6
`
`Church of the Lukumi Babalu Aye, Inc.
`v. City of Hialeah,
`508 U.S. 524 (1952) ................................ 26, 32
`
`Clinton v. City of New York,
`524 U.S. 417 (1998) ......................... 3, 4, 8, 10
`
`Everson v. Bd. of Educ.,
`330 U.S. 1 (1947) ....................................... 25
`
`Fiallo v. Bell,
`430 U.S. 787 (1977) ................................... 33
`
`Galvan v. Press,
`347 U.S. 522 (1954) ...................................
`
`6
`
`Haitian Refugee Ctr. v. Civiletti,
`503 F. Supp. 442 (S.D. Fla. 1980) ............. 17
`
`
`
`

`

`
`
`iv
`
`
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`
`Hosanna-Tabor Evangelical Lutheran
`Church & Sch. v. EEOC,
`565 U.S. 171 (2012) ................................... 24
`
`Hughes Aircraft Co. v. Jacobson,
`525 U.S. 432 (1999) ................................... 15
`
`INS v. Chadha,
`462 U.S. 919 (1983) ................................... 5, 9
`
`Judulang v. Holder,
`565 U.S. 42 (2011) .....................................
`
`Kendall v. United States ex rel. Stokes,
`37 U.S. (12 Pet.) 524 (1838) ......................
`
`2
`
`9
`
`Kent v. Dulles,
`357 U.S. 116 (1958) ................................... 12
`
`Kerry v. Din,
`135 S. Ct. 2128 (2015) ............................... 4, 15
`
`Korematsu v. United States,
`323 U.S. 214 (1944) ................................... 16
`
`Larson v. Valente,
`456 U.S. 228 (1982) .............................
`
`5, 25
`
`Lee v. Weisman,
`505 U.S. 577 (1992) ........................... 23, 25, 31
`
`Legal Assistance for Vietnamese Asylum
`Seekers v. Dep’t of State,
`45 F.3d 469 (D.C. Cir. 1995) ................. 16, 18
`
`
`
`

`

`
`
`v
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`
`McCreary Cty. v. ACLU of Ky.,
`545 U.S. 844 (2005) ............................ 23, 32
`
`Medellín v. Texas,
`552 U.S. 491 (2008) ...................................
`
`9
`
`Nat’l Fed’n of Indep. Bus. v. Sebelius,
`567 U.S. 519 (2012) ................................... 33
`
`Town of Greece v. Galloway,
`134 S. Ct. 1811 (2014) .............
`
`5, 23, 24, 25
`
`Trinity Lutheran Church v. Comer,
`137 S. Ct. 2012 (2017) .............................
`
`United States v. Midwest Oil Co.,
`236 U.S. 459 (1915) ...................................
`
`United States v. Williams,
`553 U.S. 285 (2008) ...............................
`
`United States v. Witkovich,
`353 U.S. 194 (1957) ...............................
`
`26
`
`8
`
`10
`
`12
`
`Util. Air Regulatory Grp. v. EPA,
`134 S. Ct. 2427 (2014) ........................... 10, 16
`
`Youngstown Sheet & Tube Co. v. Sawyer,
`343 U.S. 579 (1952) .......................
`4, 7, 16
`
`Zadvydas v. Davis,
`533 U.S. 678 (2001) ................................... 33
`
`Zivotofsky ex rel. Zivotofsky v. Kerry,
`135 S. Ct. 2076 (2015) ...............................
`
`7
`
`
`
`

`

`
`
`vi
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`
`Constitutional Provisions
`
`U.S. Const. amend. I ...................................... 22
`
`U.S. Const. art. I, § 8, cl. 3 ............................ 7
`
`U.S. Const. art. I, § 8, cl. 4 ............................ 6, 7
`
`U.S. Const. art. I, § 8, cl. 10 .......................... 7
`
`U.S. Const. art. I, § 8, cl. 11 .......................... 7
`
`U.S. Const. art. VI, cl. 3................................. 21
`
`Statutes
`
`8 U.S.C. § 1151(b)(2)(A)(i) ..........................
`
`18
`
`8 U.S.C. § 1152(a)(1)(A) ..................
`
`4, 16, 18
`
`8 U.S.C. § 1153 ...........................................
`
`18
`
`8 U.S.C. § 1182(a) .......................................
`
`8 U.S.C. § 1182(a)(1)(A) ..............................
`
`8 U.S.C. § 1182(a)(2) ...................................
`
`9
`
`9
`
`9
`
`8 U.S.C. § 1182(a)(3)(B) ......................
`
`4, 9
`
`8 U.S.C. § 1182(a)(3)(B)(i) .................. 12, 13, 15
`
`8 U.S.C. § 1182(a)(4) ...................................
`
`9
`
`8 U.S.C. § 1182(f) ................................... 10, 15
`
`8 U.S.C. § 1187 ...................................
`
`13
`
`
`
`

`

`
`
`vii
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`8 U.S.C. § 1187(a)(12)(A) ........................
`18
`
`8 U.S.C. § 1735(a) ...................................
`
`13
`
`Visa Waiver Program Improvement and
`Terrorist Travel Prevention Act of
`2015, Pub. L. No. 114-113, 129 Stat.
`2989, Div. O, § 203 (codified at 8
`U.S.C. § 1187(a)(12)) ........................... 13, 14
`
`Executive Branch Materials
`
`50 Fed. Reg. 41329 (Oct. 10, 1985)................ 19
`
`51 Fed. Reg. 30470 (Aug. 26, 1986) ............... 19
`
`71 Fed. Reg. 28541 (May 16, 2006) ............... 19
`
`Proclamation 2523, 6 Fed. Reg. 5821
` (Nov. 14, 1941) ........................................... 11
`
`Legislative Materials
`
`Act of 1646: Heresie Error, in Colonial
`(William H.
`Laws of Massachusetts
`Whitmore ed., 1889) ................................... 29
`
`Act of 1715, ch. XXXVI, § 7, in Thomas
`Bacon,
`Laws
`of Maryland
`at
`Large (1765) ................................................ 29
`
`Act of 1717, ch. X, § 1, in Thomas Bacon,
`Laws of Maryland at Large (1765) ............ 30
`
`Act of 1732, ch. XXIII, in Thomas Bacon,
`Laws of Maryland at Large (1765) ............ 30
`
`
`
`

`

`
`
`viii
`
`TABLE OF AUTHORITIES – cont’d
`
`1 Annals of Cong. (1789)
`(Joseph Gales ed., 1834) ............................. 25
`
`Page(s)
`
`Combatting Terrorist Travel: Does the Visa
`Waiver Program Keep Our Nation Safe?,
`Hearing on H.R. 158 Before
`the
`Subcomm. On Border & Maritime
`Security of the H. Comm. on Homeland
`Security, 114th Cong. (2015) ...................... 14
`
`161 Cong. Rec. H9054 (Dec. 8, 2015) ............ 14
`
`2 The Debates
`the Several State
`in
`Conventions on the Adoption of the Federal
`Constitution (Jonathan Elliot ed., 2d ed.
` 1836)..................................... 20, 25, 26, 31, 32
`
`4 The Debates in the Several State
`Conventions on the Adoption of the
`Federal Constitution
` (Jonathan Elliot ed., 2d ed. 1836) …… passim
`
`Grand Assembly, Mar. 13, 1659-60, Act VI,
`in 1 Hening, The Statutes at Large, Being
`a Collection of All the Laws of Virginia
`(1809) .......................................................... 29
`
`Hearings Before the Subcomm. No. 1 of the
`H. Comm. on the Judiciary on H.R. 2580
`to Amend
`the
`Immigration
`and
`Nationality Act, and for Other Purposes,
`89th Cong. (1965) ....................................... 17
`
`H.R. Conf. Rep. No. 100-475 (1987) .............. 11
`
`
`
`

`

`
`
`ix
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`
`H.R. Rep. No. 89-745 (1965) .......................... 17
`
`H.R. Rep. No. 114-369 (2015) ........................ 13
`
`for
`Thomas Jefferson, Virginia Act
`Establishing Religious Freedom, ch.
`XXXIV (Oct. 1785), in 12 William Walter
`Hening, The Statutes at Large, Being a
`Collection of All the Laws of Virginia
`(1823) .......................................................... 23
`
`Kentucky Resolutions of 1798, in 4 The
`Debates in the Several State Conventions
`on
`the Adoption
`of
`the Federal
`Constitution (Jonathan Elliot ed., 2d ed.
`1836) ...........................................................
`
`1 The Records of the Federal Convention of
`1787 (Max Farrand ed., 1911) ....................
`
`2 The Records of the Federal Convention of
`1787 (Max Farrand ed., 1911) ....................
`
`3
`
`8
`
`6
`
`Second Charter to the Treasurer and
`Company for Virginia, § XXIX (May 23,
`1609), in 1 William Walter Hening, The
`Statutes at Large, Being a Collection of
`All the Laws of Virginia (1809) .................. 28
`
`Other Authorities
`
`1 The Colonial Records of the State of
`Georgia (Allen D. Candler ed., 1904) ......... 30
`
`
`
`

`

`
`
`x
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`
`The Federalist No. 47 (Madison) (Clinton
`Rossiter ed., rev. ed. 1999) .........................
`
`8
`
`Noah Feldman, The Intellectual Origins of
`the Establishment Clause, 77 N.Y.U. L.
`Rev. 346 (2002) ........................................... 22
`
`Lyndon B. Johnson, Remarks at the
`Signing of the Immigration Bill (Oct. 3,
`1965)............................................................ 17
`
`Letter from George Washington to the
`Hebrew Congregation in Newport, R.I.
`(Aug. 18, 1790) ........................................ 24, 31
`
`James Madison, Memorial
`and
`Remonstrance
`Against
`Religious
`Assessments, in 2 The Writings of James
`Madison (Robert Rutland et al. eds.,
` (1977) .................................................. 5, 23, 27
`
`James Madison, Speech at the Virginia
`Ratifying Convention (June 12, 1788), in
`11 The Papers of James Madison (Robert
`Rutland et al. eds., 1977) ........................... 20
`
`Kate M. Manuel, Cong. Research Serv.,
`Executive Authority to Exclude Aliens:
`In Brief (Jan. 23, 2017) .............................. 19
`
`Michael W. McConnell, Establishment and
`Disestablishment at the Founding, Part
`I: Establishment of Religion, 44 Wm. &
` Mary L. Rev. 2105 (2003) ............ 24, 27, 28, 30
`
`
`
`

`

`
`
`xi
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`
`Michael W. McConnell, The Origins and
`Historical Understanding
`of Free
`Exercise of Religion, 103 Harv. L. Rev.
`1409 (1990) .............................................. 21, 27
`
`Michael W. McConnell, Tradition and
`Constitutionalism
`Before
`the
`Constitution, 1998 U. Ill. L. Rev. 173
`(1998) ..........................................................
`
`8
`
`Joel A. Nichols, Religious Liberty in the
`Thirteenth
`Colony:
`Church-State
`Relations in Colonial and Early National
`Georgia, 80 N.Y.U. L. Rev. 1693 (2005) ..... 30
`
`Notes on the Debates in the Pennsylvania
`Convention Taken by James Wilson,
`in Pennsylvania and
`reprinted
`the
`Federal Constitution, 1787-1788 (John
`Bach McMaster & Frederick Dawson
`Stone eds., 1888) ......................................... 22
`
`Alex Nowrasteh, Guide
`to Trump’s
`Executive Order to Limit Migration for
`“National Security” Reasons, Cato Inst.:
`Cato at Liberty (Jan. 26, 2017) .................. 33
`
`Press Release, U.S. Dep’t of Homeland
`Sec., DHS Announces Further Travel
`Restrictions for the Visa Waiver Program
`(Feb. 18, 2016) ............................................ 14
`
`
`
`
`
`

`

`
`
`xii
`
`TABLE OF AUTHORITIES – cont’d
`
`Page(s)
`Records of the Colony or Jurisdiction of
`New Haven (Charles J. Hoadly ed.,
` 1858)............................................................ 29
`
`Robert J. Reinstein, The Limits of
`Executive Power, 59 Am. U. L. Rev. 259
`(2009) ..........................................................
`
`8
`
`State, Presidential
`of
`U.S. Dep’t
`Proclamations, https://perma.cc/M2RL-
`6775 (last visited Sept. 12, 2017) ........
`
`18
`
`U.S. Dep’t of State, Visa Waiver Program,
`https://travel.state.gov/content/visas/en/
`visit/visa-waiver-program.html (last
`visited Aug. 9, 2017) ................................... 13
`
`
`
`
`
`

`

`
`
`1
`
`INTEREST OF AMICI CURIAE1
`
`Amici are members of Congress who are familiar
`with the Immigration and Nationality Act and other
`laws passed by Congress related to immigration and
`national security concerns, as well as the interplay
`between those laws and constitutional guarantees.
`committed
`to ensuring
`that our
`Amici are
`immigration laws and policies both help protect the
`nation from foreign and domestic attacks and comport
`with fundamental constitutional principles, including
`the First Amendment. Amici are thus particularly
`well-situated to provide the Court with insight into
`the limitations that both the Constitution and federal
`immigration laws impose on the Executive Branch’s
`discretion to restrict admission into the country, and
`they also have a strong interest in seeing those
`limitations respected.
`
`A full listing of amici appears in the Appendix.
`
`SUMMARY OF ARGUMENT
`
`The First Amendment reflects our Founding
`promise that “no sect here is superior to another.” 4
`
`
`
`1 The parties have consented to the filing of this brief and their
`letters of consent have been filed with the Clerk. Under Rule
`37.6 of the Rules of this Court, amici state that no counsel for a
`party authored this brief in whole or in part, and no counsel or
`party made a monetary contribution intended to fund the
`preparation or submission of this brief. No person other than
`amici or their counsel made a monetary contribution to its
`preparation or submission.
`
`
`
`
`
`

`

`
`
`2
`
`The Debates in the Several State Conventions on the
`Adoption of the Federal Constitution 194 (Jonathan
`Elliot ed., 2d ed. 1836) (“Elliot’s Debates”). Consistent
`with this heritage of religious liberty, our nation’s
`immigration
`laws regulate entry based on an
`individualized assessment of an individual’s “fitness
`to reside in this country,” Judulang v. Holder, 565
`U.S. 42, 53 (2011), not on the basis of religious belief.
`
`(the
`Proclamation
`Presidential
`a
`In
`“Proclamation”) issued on September 24, 2017—the
`third such order issued since President Trump took
`office—the President
`seeks
`to
`rewrite
`our
`immigration
`laws
`to
`categorically
`prohibit
`immigration into the United States by nationals of
`seven countries: Iran, Libya, Syria, Yemen, Somalia,
`Chad, and North Korea, virtually all countries with
`overwhelmingly Muslim populations.
` The sole
`exception—North Korea, which sent fewer than 100
`nationals, including many diplomats, to the United
`States
`last year—is entirely symbolic.
` The
`Proclamation also prohibits the issuance of non-
`immigrant visas to nationals from Syria and North
`Korea, certain non-immigrant visas to nationals of
`Iran, Libya, Yemen, and Chad, and business and
`tourist visas to a tiny number of Venezuelan
`government officials.
`
`The Proclamation purports to be data-driven,
`focused on countries that failed to comport with
`information-sharing and
`identity management
`protocols. But the Proclamation was jerry-rigged to
`target Muslims. Numerous countries failed to meet
`one or more of the Proclamation’s criteria, but were
`not included in its travel ban. Somalia, a Muslim-
`
`
`
`

`

`
`
`3
`
`majority nation, satisfied the information-sharing
`criteria, but was nevertheless subjected to the ban;
`Venezuela, which is less than 1% Muslim, failed the
`same criteria, but its nationals—other than a small
`number of government officials—are permitted to
`travel to the United States. Like its predecessors, the
`Proclamation targets Muslim-majority nations; it
`imposes a religiously gerrymandered
`test
`for
`immigration. All told, the Proclamation excludes over
`150 million individuals from the United States—
`overwhelmingly from Muslim-majority nations—and
`prevents U.S. citizens and others from sponsoring and
`reuniting with relatives from the targeted countries.
`The Proclamation reflects President Trump’s view
`that “there is great hatred towards Americans by
`large segments of the Muslim population” and that
`“Islam hates us.” J.A. 120.
`
`The Proclamation cannot be squared with our
`Constitution’s system of separation of powers. Our
`nation revolted in opposition to the tyrannical rule of
`a king, and the Framers of our Constitution took
`pains to deny the President the power to both make
`the law and then execute it, recognizing that such
`concentrated power “in the hands of a single branch
`is a threat to liberty.” Clinton v. City of New York,
`524 U.S. 417, 450 (1998) (Kennedy, J., concurring).
`The Framers gave the legislative power, including the
`authority to make rules concerning immigration, to
`Congress, ensuring that control of our borders would
`not be left to the “absolute dominion of one man.”
`Kentucky Resolutions of 1798, in 4 Elliot’s Debates
`543.
`
`
`
`

`

`
`
`4
`
`Congress chose to delegate a limited portion of
`these powers to the Executive in the Immigration and
`Nationality Act (“INA”). The government’s defense of
`the Proclamation principally rests on Section 212(f) of
`that statute, but that section does not give the
`President the power to override the parts of the INA
`he dislikes in favor of his own preferred policy. That
`is what he has done here. By treating all persons from
`the designated Muslim-majority
`countries as
`potential terrorists, the Proclamation overrides
`Congress’s carefully chosen, “specific criteria for
`determining terrorism-related inadmissibility,” Kerry
`v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J.,
`concurring); 8 U.S.C. § 1182(a)(3)(B), and flouts
`Congress’s explicit prohibition against discrimination
`on account of “nationality, place of birth, or place of
`residence,” id. § 1152(a)(1)(A), in the issuance of
`immigrant visas. In short, the Proclamation “does not
`direct that a congressional policy be executed in a
`manner prescribed by Congress—it directs that a
`presidential policy be executed
`in a manner
`prescribed by the President.” Youngstown Sheet &
`Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952).
`
`Incredibly, the government says that no court can
`review the President’s arrogation of legislative power.
`But “[a]bdication of responsibility is not part of the
`constitutional design.” Clinton, 524 U.S. at 452
`(Kennedy, J., concurring). The President may not
`switch the Constitution’s separation of powers “on or
`off at will.” Boumediene v. Bush, 553 U.S. 723, 765
`(2008).
`
`“Executive action under
`legislatively
`delegated authority . . . is always subject to check by
`the terms of the legislation that authorized it; and if
`
`
`
`

`

`
`
`5
`
`that authority is exceeded it is open to judicial
`review.” INS v. Chadha, 462 U.S. 919, 953 n.16
`(1983).
`
`fell within the
`if the Proclamation
`Even
`President’s delegated authority—which it does not—
`it would still violate the First Amendment. Centuries
`ago, James Madison observed that “the first step . . .
`in the career of intolerance” is to place “a Beacon on
`our Coast,” warning the “persecuted and oppressed of
`every Nation and Religion” that they must “seek some
`other Haven.” James Madison, Memorial and
`Remonstrance Against Religious Assessments, in 2
`The Writings of James Madison 188 (G. Hunt ed.,
`1901). The First Amendment prevents official
`disapproval of a religious minority, “secur[ing]
`universal religious liberty, by putting all sects on a
`level—the only way to prevent persecution.” 4 Elliot’s
`Debates 196. Where, as here, the government
`“classif[ies] citizens based on their religious views”
`and “single[s] out dissidents for opprobrium,” Town of
`Greece v. Galloway, 134 S. Ct. 1811, 1826 (2014), it
`violates the “clearest command of the Establishment
`Clause”: “one religious denomination cannot be
`officially preferred over another.” Larson v. Valente,
`456 U.S. 228, 244 (1982). Because the Proclamation
`is shot through with anti-Muslim animus, it violates
`the central meaning of the Religion Clauses.
`
`When the Executive Branch abuses its authority,
`“the judicial department is a constitutional check.” 2
`Elliot’s Debates 196. The best way to protect the
`nation’s security, while also upholding foundational
`American values, is to respect the Constitution’s
`fundamental protections and the laws passed by
`
`
`
`

`

`
`
`6
`
`Congress. “Liberty and security can be reconciled;
`and in our system they are reconciled within the
`framework of the law.” Boumediene, 553 U.S. at 798.
`
`ARGUMENT
`I. SEPARATION-OF-POWERS PRINCIPLES
`DO NOT PERMIT THE PRESIDENT TO
`WRITE RELIGIOUS DISCRIMINATION
`INTO OUR NATION’S
`IMMIGRATION
`LAWS.
`
`Our Constitution entrusts Congress with “broad,
`undoubted power over the subject of immigration and
`the status of aliens.” Arizona v. United States, 567
`U.S. 387, 394 (2012); Galvan v. Press, 347 U.S. 522,
`531 (1954) (“Policies pertaining to the entry of aliens
`and their right to remain here are . . . entrusted
`exclusively to Congress.”). This is reflected explicitly
`in the Constitution’s grant of power to Congress to
`“establish a uniform Rule of Naturalization,” U.S.
`Const. art. I, § 8, cl. 4, which the Framers wrote to
`“leave a discretion to the Legislature . . . which will
`answer every purpose,” 2 The Records of the Federal
`Convention of 1787, at 268 (Max Farrand ed., 1911).
`
`Of course, Congress may choose to delegate
`substantial powers to the Executive Branch, see
`Arizona, 567 U.S. at 396 (discussing “broad discretion
`exercised by immigration officials” over removal);
`Carlson v. Landon, 342 U.S. 524, 544 (1952)
`(delegation permissible
`“because
`the executive
`judgment is limited by adequate standards”), but the
`Executive has no independent lawmaking power over
`the subject of immigration. “[T]he President’s power
`
`
`
`

`

`
`
`7
`
`to see that the laws are faithfully executed refutes the
`idea that he is to be a lawmaker.” Youngstown, 343
`U.S. at 587; id. at 655 (Jackson, J., concurring) (“The
`Executive, except for recommendation and veto, has
`no legislative power.”); Resp’ts Br. 4-5.
`
`The federal government stresses that this case
`involves an executive power because it implicates
`foreign affairs, see Pet’rs Br. 47-48, but the
`Constitution does not give
`the President a
`freewheeling grant of lawmaking authority with
`respect to foreign affairs, Zivotofsky ex rel. Zivotofsky
`v. Kerry, 135 S. Ct. 2076, 2090 (2015) (“The Executive
`is not free from the ordinary controls and checks of
`Congress merely because foreign affairs are at
`issue.”). Quite the contrary, the Constitution gives
`Congress the power to make laws to regulate foreign
`commerce with foreign nations, to define and punish
`offenses against the law of nations, to declare war,
`and, most relevant here, to establish a uniform rule of
`naturalization. U.S. Const. art. I, § 8, cls. 3, 4, 10, 11.
`“[W]hether the realm is foreign or domestic, it is still
`the Legislative Branch, not the Executive Branch,
`that makes the law.” Zivotovsky, 135 S. Ct. at 2090;
`id. at 2115 (Roberts, C.J., dissenting) (rejecting the
`view that “the President” is “the ‘sole organ’ of the
`Nation in foreign affairs” and noting that “our
`precedents have never accepted such a sweeping
`understanding of executive power”). The federal
`government’s expansive view of inherent executive
`power would permit the President to override huge
`swathes of the “extensive and complex” regime
`enacted by Congress for “governance of immigration
`
`
`
`

`

`
`
`8
`
`and alien status.” Arizona, 567 U.S. at 395. That is
`not the Constitution the Framers wrote.
`
`When the Framers wrote the Constitution more
`than two centuries ago, they gave the lawmaking
`power to Congress, recognizing that “the Prerogatives
`of the British Monarch” were not “a proper guide in
`defining the Executive powers.” 1 Records of the
`Federal Convention, supra, at 65.2 By denying the
`Executive lawmaking power, the Framers sought “to
`implement a fundamental insight: Concentration of
`power in the hands of a single branch is a threat to
`liberty.” Clinton, 524 U.S. at 450 (Kennedy, J.,
`concurring); see The Federalist No. 47, at 269
`(Madison) (Clinton Rossiter ed., rev. ed. 1999) (“The
`accumulation of all powers, legislative, executive, and
`judiciary, in the same hands . . . may justly be
`pronounced the very definition of tyranny.”); id. at
`271 (“[w]hen the legislative and executive powers are
`united in the same person or body . . . there can be no
`liberty” (quoting Montesquieu)).
`
`foundational principles, “[t]he
`Under these
`Constitution does not confer upon [the President] any
`power to enact laws or to suspend or repeal such as
`the Congress enacts.” United States v. Midwest Oil
`
`
`
`2 From the sixteenth to the eighteenth centuries, British
`Kings had claimed, as a royal prerogative, the power to make
`law without the approval of Parliament as well as the power to
`suspend the execution of laws enacted by Parliament. See
`Michael W. McConnell, Tradition and Constitutionalism Before
`the Constitution, 1998 U. Ill. L. Rev. 173, 178 (1998); Robert J.
`Reinstein, The Limits of Executive Power, 59 Am. U. L. Rev. 259,
`272-77, 279-81 (2009).
`
`
`
`

`

`
`
`9
`
`Co., 236 U.S. 459, 505 (1915); Kendall v. United States
`ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838)
`(refusing to “cloth[e] the President with a power
`entirely to control the legislation of congress”).
`Rather, “[t]he President’s authority to act, as with the
`exercise of any governmental power, ‘must stem
`either from an act of Congress or from the
`Constitution itself.’” Medellín v. Texas, 552 U.S. 491,
`524 (2008) (quoting Youngstown, 343 U.S. at 585).
`Thus, the President cannot make an end-run around
`the “single, finely wrought,” “step-by-step, deliberate
`and deliberative process,” Chadha, 462 U.S. at 951,
`959, the Framers prescribed for lawmaking. Yet, as
`demonstrated below, that
`is exactly what the
`President attempts to do here.
`II. THE PROCLAMATION RUNS AFOUL OF
`THE IMMIGRATION AND NATIONALITY
`ACT.
`
`In support of its claimed authority to categorically
`exclude
`from
`the United States 150 million
`individuals, virtually all
`from Muslim-majority
`countries, the federal government principally relies
`on Section 212(f) of the INA. However, that provision
`does not give the President the breathtaking
`authority that the government claims.
`
`Section 212 of the INA sets out a detailed list of
`“aliens” who are “ineligible to receive visas and
`ineligible to be admitted to the United States,” 8
`U.S.C. § 1182(a), because their presence would be
`harmful to the United States. See id. § 1182(a)(1)(A)
`(communicable disease);
`(past
`id. § 1182(a)(2)
`criminal convictions or criminal activity);
`id.
`§ 1182(a)(3)(B) (terrorist activity); id. § 1182(a)(4)
`
`
`
`

`

`10
`
`
`
`(public charge). Each of these proscriptions targets
`individuals who have engaged in certain acts, or who
`have a condition that makes their entry harmful to
`the United States. Following that list, Section 212(f)
`provides that the President may deny entry to
`additional “aliens or . . . class[es] of aliens” based upon
`a finding that their “entry into the United States . . .
`would be detrimental to the interests of the United
`States.” Id. § 1182(f).
`
`to codify wartime
`Section 212(f)—enacted
`emergency powers—gives the President the flexibility
`to impose additional limits on entry into the United
`States in response to emergency conditions when
`Congress cannot act expeditiously. Read together
`with the rest of the section, it is a gap-filling
`provision, allowing the President to supplement the
`restrictions contained in Section 212 in response to
`new conditions. United States v. Williams, 553 U.S.
`285, 294 (2008) (“[A] word is given more precise
`content by the neighboring words with which it is
`associated.”). But it does not give the President the
`authority to supersede Congress’s judgment when
`Congress has already considered an issue and
`addressed it. Section 212(f) does not give the
`President the equivalent of a line-item veto over the
`immigration laws enacted by Congress, permitting
`him to excise those parts of the INA he dislikes. That
`would “deal a severe blow to the Constitution’s
`separation of powers,” Util. Air Regulatory Grp. v.
`EPA, 134 S. Ct. 2427, 2446 (2014), and would
`“enhance[] the President’s powers beyond what the
`Framers would have endorsed,” Clinton, 524 U.S. at
`451 (Kennedy, J., concurring).
`
`
`
`

`

`11
`
`
`
`The Proclamation exceeds the authority granted
`by Section 212(f). It upends Congress’s carefully
`considered and calibrated scheme for addressing
`potential terrorists’ abuse of our immigration laws
`contained in other parts of Section 212, substituting
`Congress’s tailored restrictions with a dragnet ban
`that denies entry to more than 150 million
`individuals—virtually all
`from Muslim-majority
`countries—based on their nationality alone. This
`sweeping ban—which is unlike any of the tailored
`restrictions
`contained
`in Section
`212—guts
`Congress’s regulatory scheme and replaces it with the
`President’s own preferred policy.
`A. The Proclamation Subverts a Carefully
`Crafted Legislative Scheme Designed
`To Prevent Potential Terrorists from
`Entering the United States.
`
`Section 212(f) does not give the President a blank
`check; rather, it must be understood against the
`backdrop of wartime emergency restrictions
`it
`codified. See Proclamation 2523, 6 Fed. Reg. 5821,
`5822, ¶ 3 (Nov. 14, 1941) (“No alien shall be permitted
`to enter the United States if it appears to the
`satisfaction of the Secretary of State that such entry
`would be prejudicial to the interests of the United
`States as provided in the rules and regulations
`hereinbefore authorized to be prescribed by the
`Secretary of State, with the concurrence of the
`Attorney General.”); see also H.R. Conf. Rep. No. 100-
`475, at 165 (1987) (describing the President’s
`authority under Section 212(f) as the authority “to
`deny admissions by proclamation or to deny entry to
`aliens when the United States is at war or during the
`
`
`
`

`

`12
`
`
`
`existence of a national emergency proclaimed by the
`President” (emphasis added)). In codifying those
`emergency powers, Congress gave the President an
`important, but limited, grant of authority, ensuring
`that he could act quickly in emergency situations—
`that
`is, when Congress had not yet had an
`opportunity to consider a particular issue or class of
`possible entrants to the country. See Resp’ts Br. 38-
`40; Kent v. Dulles, 357 U.S. 116, 128 (1958) (refusing
`to read congressional statute to give the Executive
`“unbridled disc

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