Amicus Brief on Behalf of Evan McMullin et al in Hawaii v. Trump: Congress Intended to 'Eliminate All Vestiges of Discrimination'

By John Bellinger, Lawfare, Brookings Institution, April 8, 2018

On April 25, when the Supreme Court hears argument in Hawaii v Trump, the challenge to President Trump’s third executive order imposing a travel ban on nationals from eight countries (“EO-3”), the Court will have received the views not only of the parties but of numerous other interested individuals, organizations, and states who have submitted 73 amicus briefs. Of these, 13 briefs support the Trump Administration and EO-3, while 56 briefs support Hawaii and oppose EO-3. (Four other briefs support neither party.) 

I have joined a brief (drafted by Harold Koh and others) of 52 former senior national security officials who argue that the travel ban would damage, not advance, U.S. foreign policy and national security interests.  In addition, together with colleagues at Arnold & Porter I have drafted and submitted (as counsel) a brief on behalf of former Presidential candidate Evan McMullin and a group of other historians, scholars, and commentators, which argues that EO-3 violates the plain text and clear congressional intent of the non-discrimination provision of the Immigration and Nationality Act, 8 U.S.C. 1852(a)(1)(A), which provides that “no person shall … be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”  We also argue that EO-3 is inconsistent with the comprehensive statutory scheme for admission and exclusion of aliens legislated by Congress in the INA.  EO-3 may also violate the First Amendment by discriminating on the basis of religion, but our amici argue that Hawaii v. Trump should be decided on narrower statutory grounds.

Our brief points out that when Congress enacted the INA’s non-discrimination prohibition in 1965, the provision was overwhelmingly supported by both Democrats and Republicans, including the vast majority of Republicans in the House and Senate.  (The Republican Party platform of 1960 had endorsed an “immigration policy…based upon judgment of the individual merit of each applicant for admission.”)  Republican members of Congress emphasized that the 1965 legislation was intended to rectify past discrimination in U.S. immigration policies and to “eliminate all vestiges of discrimination against any nationality group from our immigration law.” 

Our amici argue that the non-discrimination principles underlying the 1965 Act are now fundamental to our national identity.   For example, when Ronald Reagan signed amendments to the INA in 1986, he said “Our objective is … to establish a reasonable, fair, orderly, and secure system of immigration into this country and not to discriminate in any way against particular nations or people.” EO-3 seeks not only to contravene Congress’s purpose when it enacted the non-discrimination provision but to return us to a period of U.S. immigration history in which the values of equal treatment and individual consideration gave way to rigid race and nationality-based preferences.

In addition, we argue that President Trump may not unilaterally supplant the comprehensive statutory scheme Congress enacted and has carefully amended over 50 years. This scheme provides a detailed framework for addressing the very issues that EO-3 purports to confront, among them the threat of terrorism and the variability among nations’ capabilities and willingness to cooperate with American officials.  EO-3 attempts to substitute the President’s sweeping nationality- based restrictions for Congress’s more tailored approach to inadmissibility, which requires the President and the Executive branch to consider the individual qualities of each person.

Because the President’s revised travel ban conflicts with the nondiscrimination provision of the 1965 Act and impermissibly substitutes President Trump’s policy determinations for the judgments of Congress, our amici argue that it exceeds the authority delegated to him by Congress to implement the immigration laws and should be struck down on statutory grounds.