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WA and MN V Trump 17-35105 U.S. Justice Foundation Citizens United Et Al Amicus Motion and Brief
WA and MN V Trump 17-35105 U.S. Justice Foundation Citizens United Et Al Amicus Motion and Brief
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
________________________________________
)
STATE OF WASHINGTON, et al., )
)
Plaintiffs-Appellees, )
)
v. ) No. 17-35105
)
DONALD J. TRUMP, )
President of the United States, et al. )
)
Defendants-Appellants. )
________________________________________ )
Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy
Analysis Center hereby move for leave to file a brief amicus curiae in support of
as follows:
2. As stated more fully in the attached brief, amici curiae have extensive
experience with respect to the issues presented by this case, and have an
Case: 17-35105, 02/06/2017, ID: 10304130, DktEntry: 68-1, Page 2 of 4
significant interest in the outcome of this case. Amici believe that this brief will
be of assistance to the Court in deciding the Motion for Stay Pending Appeal
Pending Appeal.
Respectfully submitted,
IT IS HEREBY CERTIFIED:
Appellate Procedure, because this motion contains 157 words, excluding the parts
P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
CERTIFICATE OF SERVICE
to Brief as Amici Curiae, was made, this 6th day of February 2017, by the Courts
Case Management/ Electronic Case Files system upon the attorneys for the parties.
No. 17-35105
444444444444444444444444
In the
United States Court of Appeals for the Ninth Circuit
________________
DISCLOSURE STATEMENT
The amici curiae herein, U.S. Justice Foundation, Citizens United, Citizens
26.1, 29(c).
which has any parent company, and no person or entity owns them or any part of
them. The amici curiae are represented herein by Herbert W. Titus, who is
William J. Olson, P.C., 370 Maple Avenue West, Suite 4, Vienna, Virginia
Citizens United and Citizens United Foundation are also represented herein by
s/Herbert W. Titus
Herbert W. Titus
i
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TABLE OF CONTENTS
Page
DISCLOSURE STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
ARGUMENT
II. The Temporary Restraining Order Reinstating the Prior Status Quo
for Refugees Threatens the Nations Security. . . . . . . . . . . . . . . . . . . 7
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
ii
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Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy
Analysis Center are nonprofit organizations, exempt from federal income tax
under either section 501(c)(3) or 501(c)(4) of the Internal Revenue Code (IRC).
Each entity is dedicated, inter alia, to the correct construction, interpretation, and
application of law. Their interest also includes protecting the our nations borders,
Many of these amici have worked on these issues for many years, including
the following during the last year: (i) a Legal Analysis of presidential candidate
Trumps proposals to limit immigration from certain countries (Feb. 12, 2016);
(ii) an amicus brief to the U.S. Supreme Court in support of a 26-State challenge
to presidential executive actions that were clearly outside statutory authority (Apr.
1
Amici requested and received the consents of the parties to the filing of
this brief amicus curiae, pursuant to Rule 29(a), Federal Rules of Appellate
Procedure. No partys counsel authored the brief in whole or in part. No party
or partys counsel contributed money that was intended to fund preparing or
submitting the brief. No person other than these amici curiae, their members or
their counsel contributed money that was intended to fund preparing or
submitting this brief.
1
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number of refugees for 2017 (May 19, 2016); (iv) a Legal Policy Paper analyzing
the constitutional authority for States to enter into an interstate compact regarding
immigration (Sept. 2, 2016); and (v) Comments to the U.S. Citizenship &
On February 3, 2017, the U.S. District Court for the Western District of
(E.O.) of January 27, 2016 section 3(c), 5(a), 5(b), 5(c), and 5,(e). The
district courts Order explains the basis for its decision as follows:
The court finds that the States have satisfied [the required] standards
[for a TRO] and that the court should issue a TRO [including] the
States are likely to succeed on the merits.... [District Court Order at
4.]
There follow a few sentences as to the harm allegedly suffered by the states, but
no analysis whatsoever as to whether the plaintiffs have demonstrated that they are
likely to succeed on the merits. Remarkably, the district courts TRO2 is wholly
2
Moreover, the district judge issued no separate opinion justifying his
TRO.
2
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to issue his Executive Order.3 To correct that failure in legal analysis, Section I,
infra, addresses the broad, even plenary authority of the President to restrict
immigration from specific countries. Section II, infra, addresses the authority of
the President to delimit refugee status when required by the national interest.
ARGUMENT
I. The District Courts TRO Should be Stayed, as the President Had Full
Authority to Issue His Executive Order of January 27, 2017.
which expressly authorizes the President to suspend or restrict the entry into the
United States of any aliens or of any class of aliens that he determines would be
detrimental to the interests of the United States. This statute has been
immigration within its framework. That statute has no language suggesting that
the statutory power granted to the President could not be applied generally to an
3
Contrast the conclusory approach taken by district Judge James L.
Robart with the much more careful, textual, and analytical approach taken by
district Judge Nathaniel M. Gorton in the District of Massachusetts in his ruling
in Louhghalem, et al. v. Trump, Civil Action No. 17-10154-NMG (Feb 3.,
2017) declining any injunctive relief in a similar challenge.
3
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entire class based upon country of origin, as President Trump has done. Clearly,
this is an area where Congress has agreed legislatively that the President should
have wide berth to restrict foreign travel into the United States. Through more
than 125 years of litigation and numerous Supreme Court decisions addressing the
issue, the political branches, and especially the President, have been relatively
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950). Moreover, there is a
long line of cases holding that excluded aliens those seeking to enter the United
States have no rights under the U.S. Constitution. See, e.g., Ekiu v. United
States, 142 U.S. 651, 659 (1892); Fok Yung Yo v. United States, 185 U.S. 296,
302 (1902); United States ex rel. Turner v. Williams, 194 U.S. 279, 294 (1904);
Keller v. United States, 213 U.S. 138, 143-144 (1909); Mahler v. Eby, 264 U.S.
4
See Feere, Jon, Plenary Power: Should Judges Control U.S.
Immigration Policy? http://cis.org/plenarypower/.
4
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After Iran took American citizens working in Iran hostage and seized our
Embassy, President Carter issued Executive Order 12172, limiting entry by Iranian
aliens into the United States. U.S. immigration officials required thousands of
Iranian students to report to an immigration office, and students found to have visa
reportedly directed U.S. officials to invalidate all visas issued to Iranian citizens
for future entry into the United States, and to reissue new visas only for
compelling and proven humanitarian reasons, or where the U.S. national interest
required it.5
containing undocumented aliens on the high seas. Proclamation No. 4865, 46 Fed.
Reg. 48107 (published Oct. 1, 1981). At the same time, President Reagan issued
Executive Order 12324, to interdict any defined vessel carrying such aliens.
When challenged, a district court ruled that the Presidents power by such methods
to suspend the entry of illegal aliens had a clear constitutional basis. Haitian
5
See http://www.newsmax.com/Newsfront/jimmy-carter-barred-iranians/
2015/12/09/id/705127/.
5
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Refugee Center, Inc. v. Gracey, 600 F. Supp. 1396, 1398, 1400 (D.D.C. 1985),
1985, based upon the authority vested in him by 8 U.S.C. 1182(f) the same
statute invoked by President Trump to suspend entry into the United States of
such action exceeded the governments authority and impinged on the members
governments action was sustained, and the suit dismissed. See Encuentro Del
Canto Popular v. Christopher, 930 F. Supp. 1360 and 944 F. Supp. 805 (N.D. Cal.
1996).
Who Participate in Serious Human Rights and Humanitarian Law Violations and
Other Abuses. Section 1 of that Proclamation again, issued under the authority
of 8 U.S.C. 1182(f) suspends the entry into the United States, as immigrants
6
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violence against any civilian population based in whole or in part on any number
of factors (e.g, race, descent, sex, religion, political opinion), as well as any alien
II. The Temporary Restraining Order Reinstating the Prior Status Quo
For Refugees Threatens the Nations Security.
In their Motion for a TRO to the district court, Plaintiff States contend that
the balance of equities tips sharply in favor of the State. Motion for TRO at 23.
But they take no account of the equities that favor Defendants. And they are
many. The fundamental premise upon which the Presidents E.O. is based is that
the previous issuance process has not adequately protect[ed] the American
people from terrorist attacks by foreign nationals admitted to the United States.
E.O. at 1. However, the foremost reason for the E.O. is to suspend admissions of
foreign nationals, with the view of forming and implementing a more effective
E.O. pinpoints the major problem with the status quo, and the paramount need for
a suspension while a new policy is in the making. First, the E.O. sets a goal:
7
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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. [E.O., Section 4.]
Then this section of the E.O. articulates six separate requirements designed to
Are there good and valid reasons for such detail to take such precautions by
target for exploitation by individuals who seek to enter the United States and
who are otherwise ineligible for entry based on security grounds. See U.S.
According to this Obama Administration DHS report, the problems with the
8
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claim for refugee status, this chronic lack of evidence has caused just the opposite
response:
Indeed, with information like this, it is not surprising that the DHS memo
Times reported that the DHS testimony was elicited during hearings concerning
specifically that of Syrian refugees ignor[ing] warnings from his own national
security officials. With respect to the DHS document, itself, ICE Director Sarah
6
Washington Times, DHS admits refugee fraud easy to commit,
(Sept. 22, 2016).
9
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That was then; this is now. President Trumps E.O. ends with a Section 10
President vows to be more transparent with the American people, and to more
effectively implement policies and practices that serve the national interest. To
that end, the executive order commands the Secretary of Homeland Security to
report publicly within 180 days, and every 180 days thereafter, vital information
concerning the threats of terrorism and violence against women from foreign
nationals on American soil. Apparently, by seeking this TRO, the Plaintiff States
prefer the status quo ante, irrespective of whether the terrorist threat is real.
judge to resolve. That is why the Congress has given virtually plenary authority
over immigration and the refugee program to the President of the United States.
CONCLUSION
For the foregoing reasons, the district court February 3, 2017 Temporary
Respectfully submitted,
10
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February 6, 2017
*Attorney of record
11
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IT IS HEREBY CERTIFIED:
complies with the limitation set forth by Fed. R. App. P. 29(a)(5) and Circuit Rule
27-1(d), because this brief contains 10 pages, excluding the parts of the brief
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this
CERTIFICATE OF SERVICE
Motion for Stay Pending Appeal was made, this 6th day of February 2017, by the
Courts Case Management/Electronic Case Files system upon the attorneys for the
parties.