Challengers Allege Trump E.O. Violates First and Fifth Amendments

May 22, 2017

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The Fred T. Korematsu Center for Law and Equality (Korematsu Center), joined by the children of litigants in the Japanese relocation and incarceration cases from World War II, civil rights organizations, Michigan and national bar associations of color, filed an amicus brief on May 18, 2017 in Arab American Civil Rights League v. Trump, pending in the U.S. District Court for the Eastern District of Michigan. The brief supports a legal challenge to the Trump administration's Executive Order 13780 (March 6, 2017), entitled "Protecting the Nation from Foreign Terrorist Entry into the United States", which replaces Executive Order 13769 (January 27, 2017), of the same title.

The challengers allege that the Executive Order violates the First and Fifth Amendments, the Immigration and Nationality Act, the Religious Freedom and Restoration Act, and the Administrative Procedure Act. Additionally, the challengers oppose the pending motion to dismiss in order to pursue limited discovery in support of their claim. The federal government argues that the court should defer wholly to the executive branch because the Executive Order concerns immigration and courts have historically deferred to the executive branch on immigration issues.

In their amicus brief, the Korematsu Center and joining amici assert that courts can and should review executive branch action on immigration. The "plenary power doctrine" — arguably conferring a blank check to the executive branch — is based on a string of overtly racist and outdated cases. During World War II, the federal government used arguments similar to those it has submitted in opposing the Arab American Civil Rights League's challenge. In accepting those arguments then, the Court acquiesced to the incarceration of Japanese Americans by executive order. Those arguments should have been rejected then and they should be rejected now — the 9th Circuit and the District Court for the Eastern District of Virginia have already rejected them in their review of the previous Executive Order.

Robert S. Chang
Robert Chang

With respect to the filing, Professor Robert S. Chang, executive director of the Korematsu Center, stated that "The Korematsu Center is proud to continue to stand with civil rights organizations and the bar associations of color, representing hundreds of thousands of lawyers, together with Jay Hirabayashi, Holly Yasui, and Karen Korematsu to speak out against this unjust Executive Order, which does nothing to correct or mitigate the harms imposed by its predecessor."

The following individuals and organizations have joined the amicus brief: the Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Karen Korematsu, Holly Yasui, Asian Americans Advancing Justice | AAJC, Asian Americans Advancing Justice | Asian Law Caucus, Asian Americans Advancing Justice | Atlanta, Asian Americans Advancing Justice | Chicago, Asian Americans Advancing Justice |Los Angeles, Asian Americans Advancing Justice, the Asian American Legal Defense and Education Fund (AALDEF), the Hispanic National Bar Association (HNBA), Latino Justice PRLDEF, Inc., the National Asian Pacific American Bar Association (NAPABA), the Michigan Asian Pacific American Bar Association (MAPABA), the National Bar Association, and the South Asian Bar Association of NorthAmerica (SABA North America).

Michigan counsel includes William H. Goodman of Goodman & Hurwitz PC. Attorneys from Akin Gump Strauss Hauer & Feld LLP, including Pratik Shah, co-head of Akin Gump's Supreme Court and appellate practice, Washington, D.C. counsel Martine Cicconi, New York partner Robert Johnson and associates Elizabeth Rosen and Daniella Roseman, and Los Angeles litigation senior counsel Jessica Weisel serve as pro bono counsel on the brief. Stated Mr. Shah, "Both the Ninth and Fourth Circuit Courts of Appeals have expressed concerns in their recent oral arguments over the Executive Order that this case hearkens back to Korematsu — we are hopeful Judge Roberts will also see the disturbing parallels."

The amicus brief is available here.

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