Minnesota, Washington respond to emergency motion

States' response to emergency motion under Circuit Rule 27-3 for administrative stay, and motion for stay pending appeal. Former top diplomats, tech giants blast immigration order as court showdown looms

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NO. 17-35105
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATES OF WASHINGTON AND MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al.,
Defendants-Appellants.
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. 2:17-cv-00141
The Honorable JAMES L. ROBART
United States District Court Judge
STATESa RESPONSE TO EMERGENCY MOTION UNDER
CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY
AND MOTION FOR STAY PENDING APPEAL
ROBERT W. FERGUSON, WSBA 26004
Attorney General
NOAH G. PURCELL, WSBA 43492
Solicitor General
ANNE E. EGELER, WSBA 20258
Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275
Civil Rights Unit Chief

MARSHA CHIEN WSBA 47020
PATRICIO A. MARQUEZ WSBA 47693
Assistant Attorneys General
Washington State
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744

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LORI SWANSON
Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678
Solicitor General
JACOB CAMPION, MN #0391274
Assistant Attorney General
Office of the Attorney General
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
(651) 757-1450

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TABLE OF CONTENTS
I.

INTRODUCTION ................................................................................1

II.

BACKGROUND ..................................................................................1

III. ARGUMENT .......................................................................................5
A. Defendantsa Appeal is Procedurally Improper .....................................5
B. If the Court Considers the Appeal, Defendantsa Burden is High
and the Standard of Review Deferential..............................................6
C. Defendants Cannot Show Irreparable Harm from the TRO When
it Simply Reinstates the Status Quo....................................................7
D. Defendants Are Unlikely to Succeed on Appeal Because the
District Court Acted Within its Discretion ..........................................8
1. Courts can review the legality of executive action and the
executiveas true motives..............................................................9
2. The States have standing ........................................................... 11
a. Proprietary standing............................................................ 11
b. Parens Patriae standing ...................................................... 13
3. The Statesa claims have merit .................................................... 14
a. Defendants are unlikely to prevail against the Statesa
Due Process claim .............................................................. 14
b. Defendants are unlikely to prevail against the Statesa
Establishment Clause claim ................................................. 18
c. Defendants are unlikely to prevail against the Statesa
Equal Protection claim ........................................................ 20

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d. Defendants are unlikely to prevail against the Statesa
INA claim ......................................................................... 21
4. A nationwide TRO was appropriate............................................ 23
E. A Stay Would Harm the States and the Public Interest........................ 24
IV. CONCLUSION .................................................................................. 25

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I.

INTRODUCTION

On January 27, President Trump unleashed chaos by signing the
Executive Order at issue here. Within 72 hours, the State of Washington
(quickly joined by Minnesota) had filed a complaint and motion for temporary
restraining order (TRO), detailing the extraordinary and irreparable harms the
Order was inflicting on our States and our people. After hearing from
Defendants, the district court entered the TRO, finding that the States had met
their burden to obtain that relief. The effects of the TRO were positive and
immediate, as immigration procedures began to return to normal, families
reunited, stranded students and faculty began returning to our States, and
longtime State residents were able to return to their homes.
Defendants now ask this Court to unleash chaos again by staying the
district court order. The Court should decline. Defendantsa appeal is improper,
their burden to obtain a stay is high and unmet, and their arguments fail.
II.

BACKGROUND

Donald Trump campaigned on the promise to impose aa total and
complete shutdown of Muslims entering the United States.a ECF 18 AP 42-43.1
He repeatedly defended and reiterated this promise. ECF 18 APAP 44-46.
1

All ECF citations are to the district court docket numbers.

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Shortly after taking office, President Trump signed an Executive Order
entitled aProtecting the Nation from Foreign Terrorist Entry into the United
Statesa (athe Ordera). ECF 18 AP 49. The Order radically changes U.S.
immigration policy, imposing a 120-day moratorium on the refugee
resettlement program; indefinitely suspending entry of Syrian refugees; and
suspending for 90 days entry of anyone from seven majority-Muslim countries:
Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. ECF 18 APAP 49-52.
President Trump subsequently stated his intent to prioritize Christians in the
Middle East for admission as refugees. ECF 18 AP 53.
The Order had immediate and significant effects in Washington. Over
7,000 noncitizen immigrants from the affected countries reside in Washington.
ECF 18 AP 11; ECF 4 AP 7, Ex. A. Those who were abroad were blocked from
returning home. ECF 33 APAP 7-8. Husbands were separated from wives, brothers
from sisters, and parents from their children. ECF 18 APAP 21-23; ECF 33 AP 5, 9.
Some who had waited decades to see family members had that reunion taken
away without warning or reason. ECF 18 AP 21; see also e.g., ECF 8 APAP 11-13;
ECF 33 APAP 5-9; ECF 43 APAP 5-9.
Washingtonas economy was also immediately impacted. Washington
receives substantial sales tax revenue every year from travelers from the

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countries covered by the Orderas travel ban, and immediately began losing
some of that revenue. See ECF 17 APAP 3-11. Washington-based travel company
Expedia began incurring costs assisting its customers who were suddenly
banned from travel to the United States. ECF 7 APAP 12-14, 20. Washington
companies Amazon, Expedia, and Microsoft depend on skilled immigrants, and
the Order diminished their ability to recruit. ECF 18 APAP 12-17; ECF 6 APAP 3-4,
11; ECF 7 APAP 7, 9, 21. As a result of the order, many employees were unable to
travel internationally, impairing business operations. ECF 7 APAP 15-20; ECF 6
APAP 7-11; ECF 18 APAP 14-15.
The Order also caused immediate harm to Washingtonas public
universities, which are state agencies. Hundreds of their faculty, staff, and
students are from the affected countries. ECF 18 AP 28; ECF 9 AP 5; ECF 5 AP 5;
ECF 17-3 APAP 4, 6; ECF 17-2 AP 10; ECF 17-4 AP 5. The Order instantly stranded
some faculty and students overseas, prevented others from traveling for
research and scholarship, and harmed the universitiesa missions. ECF 9 APAP 6-8;
ECF 5 APAP 6-9. ECF 17-4 APAP 6-7.
Due to these immediate and serious harms, Washington filed a complaint
and motion for TRO. ECF 3. Minnesota soon joined, alleging similar harms.
ECF 18 APAP 30-36.

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On February 3, the district court held a hearing on the Statesa motion.
The Court granted the motion and entered a TRO barring Defendants from
enforcing several sections of the Order. ECF 52. The Court stated its intent to
promptly hold a hearing on the Statesa forthcoming motion for preliminary
injunction and ordered the parties to propose a briefing schedule by the next
business day. ECF 52 at 6. The State proposed a briefing schedule to
Defendants. Decl. of N. Purcell In Support of State of Washingtonas Response
to Emergency Motion for Stay Pending Appeal, Ex. K.
Following entry of the TRO, the State Department declared that it was
restoring visas that had been revoked under the Executive Order. Id. Exs. A, B.
It also stated that refugees could begin arriving as soon as Monday. Id. Exs. C,
D. The Department of Homeland Security started processing travelers with
visas as normal and resumed standard inspection procedures. Id. Exs. E, B, F.
Customs and Border Protection directed that nationals of the seven affected
countries and all refugees presenting a valid visa or green card be permitted to
travel to the United States. Id. Ex. G. Airlines announced that they will allow
travelers from the seven nations to board flights. Id. Exs. G, H, I, J, B, D. On
February 4, travelers from the previously banned countries began arriving at

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U.S. airports. Id. Ex. B. More travelers are expected in the coming days. Id. Ex.
B.
On February 4, Defendants filed a notice of appeal and motion for stay
pending appeal.
III.

ARGUMENT

The Court should deny Defendantsa Motion to Stay as procedurally
improper and wrong on the merits.
A.

Defendantsa Appeal is Procedurally Improper
Defendants acknowledge that TROs are generally non-appealable.

Motion at 8. But they claim a right to appeal here because the order, in their
view, is akin to a preliminary injunction. Id. Not so.
In cases where this Court has treated a TRO as a preliminary injunction,
the parties had a full opportunity to brief issues and often put on evidence, and
the order extended for lengthy periods. See, e.g., SEIU v. Natal Union of
Healthcare Workers, 598 F.3d 1061, 1067 (9th Cir. 2010) (months passed
between complaint and TRO, and TRO was entered after 2-day evidentiary
hearing). Here, by contrast, Washington filed its complaint and motion
simultaneously, the TRO expressly ends when athe court can hear and decide
the Statesa request for a preliminary injunction,a ECF 52 at 5, and the States

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have proposed a schedule that would allow a hearing within 15 days of the
TROas entry. Purcell Dec. Ex. K. The Court should wait to review an order at
that time, not prematurely take up this one.
B.

If the Court Considers the Appeal, Defendantsa Burden is High and
the Standard of Review Deferential
If the Court deems this order reviewable, Defendants bear the heavy

burden of showing (1) a strong likelihood of success on the merits, (2) the
likelihood of irreparable injury if relief is not granted, (3) a balance of
hardships favoring Defendants, and (4) that reinstating the Executive Order is
in the public interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). In
assessing these factors, this Court reviews the district court order for abuse of
discretion. American Hotel and Lodging Assoc. v. Los Angeles, 834 F.3d 958,
962 (9th Cir. 2016). The review is alimited and deferential, and does not extend
to the underlying merits of the case.a Southwest Voter Registration Ed. Project
v. Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc). aIf the underlying
constitutional question is closea the Court ashould uphold the injunction and
remand for trial on the merits.a Ashcroft v. Am. Civil Liberties Union, 542 U.S.
656, 664-65 (2004).

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C.

Defendants Cannot Show Irreparable Harm from the TRO When it
Simply Reinstates the Status Quo
Defendants concede that they must show aa likelihood that [they] will be

irreparably harmed absent a stay.a Motion at 8 (quoting Hilton, 481 U.S. at
776). But they offer no evidence that the time-limited TRO will cause
irreparable harm. In purporting to identify afactsa showing athe existence and
nature of the emergencya justifying their motion, Defendants resort to highlevel references to aseparation of powers,a aharms [to] the public by thwarting
Enforcement of an Executive Order,a and the so-called harm of asecondguess[ing] the Presidentas national security judgment.a Motion at ii. These
purported harms fail to justify a stay.
First, separation-of-powers concerns do not automatically establish
irreparable harm. See, e.g., Lopez v. Heckler, 713 F.2d 1432, 1434 (9th Cir.
1983) (declining to stay district court order arestrain[ing]a the Secretary of
Health and Human Services from implementing an announced policy where
aseparation of powersa was at issue). And Defendants cannot plausibly allege
that they suffer harm from being required to comply with the law, even where
they assert national security concerns. See, e.g., Holder v. Humanitarian Law
Proj., 561 U.S. 1, 34 (2010) (aOur precedents . . . make clear that national
security and foreign relations do not warrant abdication of the judicial role.a).

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Second, Defendantsa argument amounts to claiming that returning to the
pre-Executive Order status quo would inflict irreparable harm. But that would
mean that until the Order was issued, Defendants were suffering some
unspecified, ongoing irreparable harm. That makes no sense. As this court has
held, preserving the status quo against sudden disruption is often in the interest
of all parties. See Feldman v. Ariz. Secay of Stateas Office, 843 F.3d 366, 369370 (9th Cir. 2016) (en banc) (apreserv[ing] the status quoa to avoid the
adisruptiona of a change in law pending review). That is precisely what the
TRO accomplishes here, stopping implementation of portions of the Order
until the district court determines whether they are lawful. While the Order is
reviewed, refugees and immigrants from the banned countries will continue to
undergo the rigorous screening processes that already existed prior to the
Order. Decl. of Natal Sec. Officials AP 6. Defendants nowhere explain how
reinstating a total ban is necessary to avoid irreparable injury. Id. APAP 3-5
(concluding the Executive Order is likely to weaken, not strengthen, national
security).
D.

Defendants Are Unlikely to Succeed on Appeal Because the District
Court Acted Within its Discretion
Defendants concede that to justify a stay they must also prove aa strong

likelihood of success on appeal.a Motion at 8 (quoting Hilton, 481 U.S. at 776).

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They cannot. The district court correctly concluded that the States ahave shown
that they are likely to succeed on the merits of the claims that would entitle
them to relief.a ECF 52 at 4. 2
1.

Courts can review the legality of executive action and the
executiveas true motives

Defendants offer two threshold arguments to limit this Courtas review,
claiming that invoking national security prohibits meaningful judicial review
and that courts cannot examine the Executiveas motives. Both arguments fail.
First, courts routinely review executive decisions with far greater
security implications than this Order. Even ain matters relating to the actual
prosecution of a war,a the courts aexercise their own time-honored and
constitutionally mandated roles of reviewing and resolving claims.a Hamdi v.
Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion); see also id. at 545
(Souter, J., concurring in the judgment); Boumediene v. Bush, 553 U.S. 723
(2008); Korematsu v. United States, 323 U.S. 214, 234 (1944) (Murphy, J.,

Defendants repeatedly assert that the States bring a afaciala challenge
to the Order and thus must demonstrate its invalidity in every possible
application. Motion at 2, 9, 18. But the Statesa claim is as-applied because the
States challenge only portions of the Executive Order. See, e.g., Hoye v. City of
Oakland, 653 F.3d 835, 857 (9th Cir. 2011) (a[T]he difference between an asapplied and a facial challenge lies only in whether all or only some of the
statuteas subrules (or fact-specific applications) are being challenged.a).
2

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dissenting) (aIndividuals must not be left impoverished of their constitutional
rights on a plea of military necessity that has neither substance nor support.a).
Second, Defendants cite Kleindienst v. Mandel, 408 U.S. 753 (1972),
and Kerry v. Din, 135 S. Ct. 2128 (2015), for the proposition that so long as the
President gives a facially legitimate reason for excluding an alien, the courts
will not look behind that reason. But those cases dealt with the Presidentas
power to exclude aan unadmitted and nonresident alien,a i.e., someone who
had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131.
This case, by contrast, involves longtime residents who are here and have
constitutional rights. Moreover, Justice Kennedyas controlling opinion in Din
held that courts should look behind the stated motives for exclusion even as to
a nonresident alien if the plaintiff aplausibly alleged with sufficient
particularitya aan affirmative showing of bad faith.a Id. at 2141. See also
Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (same). Here,
the State has plausibly alleged with sufficient particularity that the President
acted in bad faith in an effort to target Muslims. ECF 18 APAP 42-61. Thus, courts
have both the right and the duty to examine Defendantsa true motives.

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2.

The States have standing

In establishing standing, states aare not normal litigants,a but instead
receive aspecial solicitude.a Massachusetts v. EPA, 549 U.S. 497, 518, 520
(2007). The States established two independent grounds for Article III
standing: (1) harms to their proprietary interests; and (2) harms to their quasisovereign interests. ECF 17 at 2-5. Defendants fail to overcome either basis.
Crucially, because this case is at the pleading stage, the States need only
astate a plausible claim that [they have] suffered an injury in fact fairly
traceable to the actions of the defendant[s] that is likely to be redressed by a
favorable decision on the merits.a Humane Socay v. Vilsack, 797 F.3d 4, 8
(D.C. Cir. 2015). a[G]eneral factual allegations of injury resulting from the
defendantas conduct may suffice,a and the Court apresumes that general
allegations embrace those specific facts that are necessary to support the
claim.a Bennett v. Spear, 520 U.S. 154, 168 (1997).
a.

Proprietary standing

The States alleged and submitted evidence that that the Order is harming
us by stranding our university students and faculty overseas, preventing
university-sponsored faculty and staff from coming here, preventing students
and faculty who are here currently from making pre-planned trips for research

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or scholarship, and decreasing state tax revenue. See infra at 2-3. On this
evidence, the district court correctly found that athe States themselves are
harmeda by the damage to atheir public universities and other institutions of
higher learning, as well as injury to the Statesa operations, tax bases, and public
funds.a ECF 52 at 5. Defendants show no likelihood that this finding is
incorrect.
Defendants first argue that the harms to state universities are speculative,
claiming that the Orderas waiver provisions may allow students and faculty to
travel or return. Motion at 10. But in the face of evidence that faculty and
students have actually been prevented from travelling, ECF 17-4, Defendants
offer no evidence that such waivers will be granted, and concede that some
may be denied. Motion at 10. Defendantsa speculative remedies cannot undo
the Statesa real harms.
As to the Statesa evidence of lost tax revenue, ECF 17 at 2-3, Defendants
never dispute the evidence, instead claiming that lost tax revenue can never
establish state standing. But the case law does not support that claim. While
Florida v. Mellon, 273 U.S. 12 (1927), determined that the particular tax
revenues at issue there were speculative, courts have repeatedly found lost tax
revenues sufficient to establish proprietary standing. See, e.g., Sausalito v.

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Oneill, 386 F.3d 1186, 1198 (9th Cir. 2004) (holding that lost property and
sales tax revenues caused by increased traffic established standing without any
numeric quantification of the harm). And in Texas v. United States, 787 F.3d
733 (5th Cir. 2015), the court found that a change in immigration policy that
would increase state expenditures created standing. If increased expenditures
create standing, there is no logical reason why decreased revenues should not.
b.

Parens Patriae standing

The States also alleged and offered evidence that the Order is inflicting
grievous harms on our residents. ECF 17 at 4 (citing ECF 8 APAP 6-14; ECF 18 APAP
18-23, 31-36). Based on this evidence, the district court correctly concluded
that: aThe Executive Order adversely affects the Statesa residents in areas of
employment, education, business, family relations, and freedom to travel.
These harms extend to the States by virtue of their roles as parens patriae.a
ECF 52 at 4-5. Defendants never meaningfully dispute these harms, instead
arguing that parens patriae suits against the federal government are never
permitted under Massachusetts v. Mellon, 262 U.S. 447 (1923). Not so.
Mellon expressly recognized that it did not prohibit state actionsasuch
as this oneaseeking to protect quasi-sovereign interests. See id. at 481-82,
485; see also Massachusetts, 549 U.S. at 520 n.17 (same). Mellon also pointed

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out that it did not bar all parens suits challenging the United Statesa
unconstitutional acts. Mellon, 262 U.S. at 487.
More recent Supreme Court decisions confirm the Statesa parens
standing. In Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982),
the Court found that states have standing to sue based on discrimination against
their residents: aThis Court has had too much experience with the political,
social, and moral damage of discrimination not to recognize that a State has a
substantial interest in assuring its residents that it will act to protect them from
these evils.a Id. at 609. And in Massachusetts v. EPA, the Court cemented
statesa standing to protect their quasi-sovereign interests, including in actions
against the federal government. 549 U.S. at 516-21. The Court rejected the
broad reading of Mellon advocated by Defendants, id. at 520 n.17, confirming
that a state can assert standing to protect its citizens when the federal
government violates federal law.
3.

The Statesa claims have merit
a.

Defendants are unlikely to prevail against the Statesa
Due Process claim

The Order violates due process in several ways and the Statesa claim is
very likely to succeed.

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First, the Order denies entry to the United States of all persons from the
seven countries, regardless of whether they have lived legally in this country
for years.3 Thus, our Statesa residents from these countries who travel abroad
will be deported if they attempt to re-enter this county, and those who remain
will be forced to forego international travel to avoid that devastating result.
This draconian restriction violates due process.
The Fifth Amendment protects all persons in the United States afrom
deprivation of life, liberty, or property without due process of law,a regardless
of immigration status. Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976); Zadvydas
v. Davis, 533 U.S. 678, 693 (2001). A temporary absence from the country
does not deprive longtime residents of their right to due process. See, e.g.,
Landon v. Plasencia, 459 U.S. 21, 33 (1982) (a[T]he returning resident alien is
entitled as a matter of due process to a hearing on the charges underlying any
attempt to exclude him.a) (internal citation omitted); Kwong Hai Chew v.
Colding, 344 U.S. 590, 601 (1953).

3

After taking a dizzying number of positions, Defendants landed on the
view that the travel ban adoes not apply to lawful permanent residents.a See
Mot. at 6. Nonetheless, the text of the Order remains unchanged, and the
Statesa challenge to that portion of Section 3(c) is not moot. See White v. Lee,
227 F.3d 1214, 1243 (9th Cir. 2000) (mootness based on voluntary cessation is
a astringenta standard).

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Due process requires that lawful permanent residents and visaholders not
be denied re-entry to the United States without aat a minimum, notice and an
opportunity to respond.a United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th
Cir. 2014). A resident denied re-entry must receive a afull and fair hearing of
his claimsa and aa reasonable opportunity to present evidence on his behalf.a
Colmenar v. I.N.S., 210 F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662
F.3d 1083, 1091 (9th Cir. 2011).
The Orderas denial of re-entry to all visaholders and lawful permanent
residents from the impacted countries, without an opportunity to be heard,
violates these principles. The Order also deprives noncitizen residents of our
States of the right to travel, a constitutionally protected liberty interest. Kent v.
Dulles, 357 U.S. 116, 125-26 (1958) (holding that Secretary of State could not
deny passports to Communists on the basis that the right to travel abroad is a
constitutionally protected liberty interest).
Defendants never contest these principles. Instead, they argue that the
Order will not really affect our Statesa residents, and that states cannot raise
due process claims, citing South Carolina v. Katzenbach, 383 U.S. 301 (1966).
But the States have alleged and offered evidence that many state residents,

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including students and faculty at public universities, are being harmed by the
Order. Defendants cannot wish that away.
Moreover, unlike in Katzenbach, the States here assert proprietary
harms. Where, as here, a state asserts harms to students and faculty at its
institutions, the State should be allowedajust like any other proprietor of
educational institutionsato raise due process claims on their behalf. See, e.g.,
Pierce v. Socay of Sisters, 268 U.S. 510 (1925); Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1487 (9th Cir. 1995) (holding that school had
standing to challenge harm to students that impacted school); Ohio Assan of
Indep. Schs. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996) (same); see also Bd. of
Nat. Res. of State of Wash. v. Brown, 992 F.2d 937, 943 (9th Cir. 1993).
Even as to the Statesa parens claims, Katzenbach does not control.
Katzenbach cited Mellon in holding that South Carolina could not use its
parens authority to challenge a federal statute. 383 U.S. at 323-24. But in
Massachusetts v. EPA, the Court clarified that athere is a critical difference
between allowing a State to protect her citizens from the operation of federal
statutes (which is what Mellon prohibits) and allowing a State to assert its
rights under federal law (which it has standing to do).a 549 U.S. at 520 n.17.
Here, the States seek not to protect our residents from federal statutes, but to

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protect our residents against Defendantsa violations of federal law. This is what
States aha[ve] standing to do.a Id.
b.

Defendants are unlikely to prevail against the Statesa
Establishment Clause claim

The State has alleged and offered substantial evidence even before
discovery that the Executive Order violates the Establishment Clause because
its purpose and effect are to favor one religion. aThe clearest command of the
Establishment Clause is that one religious denomination cannot be officially
preferred over another.a Larson v. Valente, 456 U.S. 228, 244 (1982). In
Larson, the law at issue did not mention any religious denomination, but drew
a distinction between religious groups based on facially neutral criteria. Id. at
231-32. The Court nonetheless applied strict scrutiny because the law was
focused on religious entities and had the effect of favoring some. Id. at 246-47.
Larson applies here. The Orderas refugee provisions explicitly
distinguish between members of religious faiths. President Trump has made
clear that one purpose of the Order is to favor Christian refugees at the expense
of Muslims. ECF 18 AP 53, Ex. 8. And the States have plausibly alleged that the
countries chosen for the travel ban were chosen in part to disfavor Muslims.

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ECF 18 AP 61, Ex. 17. This case thus involves just the sort of discrimination
among denominations that failed strict scrutiny in Larson, and must fail here.4
Defendants claim that the Order ais neutral with respect to religion.a
Motion at 19. aBut it is . . . the duty of the courts to distinguish a sham secular
purpose from a sincere one.a Sante Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290,
308 (2000); McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 864 (2005) (citing Lemon v. Kurtzman, 403 U.S. 602, 612 (1971)).
Here, the sham of a secular purpose is exposed by both the language of the
Order and Defendantsa expressions of anti-Muslim intent. See, e.g., McCreary,
545 U.S. at 866 (courts consider the ahistorical contexta of the government act
and athe specific sequence of events leading to [its] passagea).
Unable to respond on the merits, Defendants claim that States cannot
raise Establishment Clause claims themselves or as parens patriae. Motion at
11 n.4. But they cite no authority for these propositions. And one purpose of
the Establishment Clause was to protect States against the federal government

4

Even under the less demanding Lemon test, the Order is
unconstitutional. See ECF 19-1 at 12-14.

19

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adopting a national religion. 5 There is no reason to bar States from enforcing
that right, whether on their own behalf or as parens patriae.
c.

Defendants are unlikely to prevail against the Statesa
Equal Protection claim

The States are likely to prevail on our equal protection claim because the
Executive Order is motivated by discriminatory animus and cannot survive any
level of review.
Classifications based on religion are inherently suspect and subject to
strict scrutiny. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976). The
Order specifies that Defendants will give priority to refugee claims aon the
basis of religious-based persecution,a but only if athe religion of the individual
is a minority religion in the individualas country of nationality.a Sec. 5(b). The
State has plausibly alleged and offered evidence that this policy change and the
list of countries targeted by the Order were intended to disfavor Muslims. The
States need not show that intent to discriminate against Muslims awas the sole
purpose of the challenged action, but only that it was a amotivating factor.a
Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015).
5

See, e.g., Richard Albert, The Constitutional Politics of the
Establishment Clause, 87 CHI.-KENT L. REV. 867, 874 (2012); Separation of
Church & State Comm. v. City of Eugene, 93 F.3d 617, 621 (9th Cir. 1996)
(OaScannlain, J., concurring) (a[C]oncerns about federalism . . . motivated
ratification of the Establishment Clause.a).

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Even if the Order did not make suspect classifications, it would be illegal
because aits sheer breadth is so discontinuous with the reasons offered for it
that the [Order] seems inexplicable by anything but animus toward the class it
affects.a Romer v. Evans, 517 U.S. 620, 632 (1996). For several months it bans
all travelers from the listed countries and all refugees, whether they be infants,
schoolchildren, or grandparents. And though it cites the attacks of September
11, 2001, as a rationale, it imposes no restrictions on people from the countries
whose nationals carried out those attacks. aIt is at once too narrow and too
broad,a id. at 633, and cannot withstand any level of scrutiny. See, e.g., United
States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (aThe Constitutionas guarantee
of equality must at the very least mean that a bare [legislative] desire to harm a
politically unpopular group cannot justify disparate treatment of that group.a).
d.

Defendants are unlikely to prevail against the Statesa
INA claim

8 U.S.C. ASS 1152(a)(1)(A) states: ano person shall receive any preference
or priority or be discriminated against in the issuance of an immigrant visa
because of race, nationality, place of birth, or place of residence.a Defendants
argue that the national origin discrimination embodied in the Executive Order
is nonetheless justified under Section 1182(f), which allows the President to
suspend entry of aliens detrimental to the interests of the United States, and

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that such immigration decisions are agenerally shielded from administrative or
judicial review.a Mot. at 12. Neither argument is persuasive.
Section 1152 was enacted in 1965, thirteen years after Section 1182(f),
and it enumerates specific exceptions that do not include Section 1182(f).
Congress specified exactly when federal officials could take nationality into
account: aas specifically provided in paragraph (2) and in sections 1101(a)(27),
1151(b)(2)(A)(i), and 1153 of this title.a 8 U.S.C. ASS 1152(a)(1)(A). None of
these narrow exceptions apply here; and by enumerating those few exemptions,
Congress made clear it did not intend to authorize others. 6 See, e.g., United
Dominion Indus. v. United States, 532 U.S. 822, 836 (2001) (describing
expressio unius canon).
Further, despite Defendantsa references to aplenarya power over
immigration, Motion at 4awhich actually resides with Congress, see U.S.
Const., Article I, ASS 8athe Presidentas authority under Section 1182(f) is
judicially reviewable. See Zadvydas, 533 U.S. at 698 (holding the political
branchesa power ais subject to important constitutional limitationsa); Diouf v.

Although Defendants argue that acourts have repeatedly affirmeda the
Presidentas authority to make distinctions based on nationality, Motion at 13,
none of the cases Defendants cite raised Section 1152.
6

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Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (refusing to defer to DHSas
regulations because the regulations araise[d] serious constitutional concernsa).
Before now, no President has invoked 1182(f) to impose a categorical
bar on admission based on a generalized (and unsupported) claim that some
members of a class might engage in misconduct. Cf. Pres. Procl. 5517, 1986
WL 796773 (Aug. 22, 1986) (barring entry of certain Cuban nationals, with
many categorical exceptions). The Order flouts Congressas clear command
prohibiting nationality-based discrimination.
4.

A nationwide TRO was appropriate

Defendants offer a halfhearted argument that a nationwide injunction
was inappropriate, but they offer no plausible narrower order that would have
provided the relief the States sought. In any event, nationwide relief was well
within the district courtas discretion given that (1) Congress and the courts have
emphasized the importance of uniformity in immigration policies; and (2)
nationwide relief was necessary to ensure that the Statesa residents were not
stopped at other ports of entry around the country on their way to Washington
or Minnesota. See, e.g., Texas, 787 F.3d at 768-69 (affirming nationwide
injunction to ensure uniformity and provide full relief).

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E.

A Stay Would Harm the States and the Public Interest
The States have detailed at length the harms we suffered under the

Order. Staying the district courtas ruling would reinstitute those harms,
separating families, stranding our university students and faculty, and barring
travel. Defendants claim that national security requires these harms, but the
Court need not and should not allow constitutional violations merely based on
Defendantas unsupported invocation of national security concerns. See Decl. of
Natal Sec. Officials AP 4; Hassan v. City of New York, 804 F.3d 277, 306-07 (3d
Cir. 2015) (a[I]t is often where the asserted interest appears most compelling
that we must be most vigilant in protecting constitutional rights.a). In any
event, the balance of equities and public interest always favor aprevent[ing] the
violation of a partyas constitutional rights.a Melendres v. Arpaio, 695 F.3d 990,
1002 (9th Cir. 2012).

///
///
///

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IV.

CONCLUSION

For the reasons above, the Court should deny Defendantsa request for
stay.
RESPECTFULLY SUBMITTED this 6th day of February 2017.
ROBERT W. FERGUSON, WSBA 26004
Attorney General
NOAH G. PURCELL, WSBA 43492
Solicitor General
ANNE E. EGELER, WSBA 20258
Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275
Civil Rights Unit Chief
MARSHA CHIEN WSBA 47020
PATRICIO MARQUEZ WSBA 47693
Assistant Attorneys General
Washington State
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
LORI SWANSON
Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678
Solicitor General
JACOB CAMPION, MN #0391274
Assistant Attorney General
Office of the Attorney General
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
(651) 757-1450

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STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 28-2.6(c) the Appellees state that there are no
related cases.

26

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CERTIFICATE OF COMPLIANCE (FRAP 32(a)(7))
I certify that pursuant to Fed. R. App. P. 27, the attached answering brief
is proportionately spaced, has a typeface of 14 points or more and contains
5,110 words.
February 6, 2017

s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492

27

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CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I electronically filed the
foregoing with the Clerk of the Court of the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

February 6, 2017

s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492

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Response to
Emergency Motion
Exhibit A

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IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 17-35105
STATE OF WASHINGTON, et al.
Plaintiffs-Appellees,
vs.

DONALD J. TRUMP, President of the
United States, et al.,
Defendants-Appellants.

)
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JOINT DECLARATION OF
MADELEINE K. ALBRIGHT,
AVRIL D. HAINES
MICHAEL V. HAYDEN
JOHN F. KERRY
JOHN E. McLAUGHLIN
LISA O. MONACO
MICHAEL J. MORELL
JANET A. NAPOLITANO
LEON E. PANETTA
SUSAN E. RICE

We, Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E.
McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and
Susan E. Rice declare as follows:
1.
We are former national security, foreign policy, and intelligence officials in the
United States Government:
a. Madeleine K. Albright served as Secretary of State from 1997 to 2001. A
refugee and naturalized American citizen, she served as U.S. Permanent
Representative to the United Nations from 1993 to 1997 and has been a
member of the Central Intelligence Agency External Advisory Board since
2009 and the Defense Policy Board since 2011, in which capacities she has
received assessments of threats facing the United States.
b. Avril D. Haines served as Deputy Director of the Central Intelligence Agency
from 2013 to 2015, and as Deputy National Security Advisor from 2015 to
January 20, 2017.
c. Michael V. Hayden served as Director of the National Security Agency from
1999 to 2005, and Director of the Central Intelligence Agency from 2006 to
2009.
d. John F. Kerry served as Secretary of State from 2013 to January 20, 2017.

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e. John E. McLaughlin served as Deputy Director of the Central Intelligence
Agency from 2000-2004 and Acting Director of CIA in 2004. His duties
included briefing President-elect Bill Clinton and President George W. Bush.
f. Lisa O. Monaco served as Assistant to the President for Homeland Security
and Counterterrorism and Deputy National Security Advisor from 2013 to
January 20, 2017.
g. Michael J. Morell served as Acting Director of the Central Intelligence
Agency in 2011 and from 2012 to 2013, Deputy Director from 2010 to 2013,
and as a career official of the CIA from 1980. His duties included briefing
President George W. Bush on September 11, 2001, and briefing President
Barack Obama regarding the May 2011 raid on Osama bin Laden.
h. Janet A. Napolitano served as Secretary of Homeland Security from 2009 to
2013.
i. Leon E. Panetta served as Director of the Central Intelligence Agency from
2009-11 and as Secretary of Defense from 2011-13.
j. Susan E. Rice served as U.S. Permanent Representative to the United Nations
from 2009-13 and as National Security Advisor from 2013 to January 20,
2017.
2.
We have collectively devoted decades to combatting the various terrorist threats
that the United States faces in a dynamic and dangerous world. We have all held the highest
security clearances. A number of us have worked at senior levels in administrations of both
political parties. Four of us (Haines, Kerry, Monaco and Rice) were current on active
intelligence regarding all credible terrorist threat streams directed against the U.S. as recently as
one week before the issuance of the Jan. 27, 2017 Executive Order on aProtecting the Nation
from Foreign Terrorist Entry into the United Statesa (aOrdera).
3.
We all agree that the United States faces real threats from terrorist networks and
must take all prudent and effective steps to combat them, including the appropriate vetting of
travelers to the United States. We all are nevertheless unaware of any specific threat that would
justify the travel ban established by the Executive Order issued on January 27, 2017. We view
the Order as one that ultimately undermines the national security of the United States, rather than
making us safer. In our professional opinion, this Order cannot be justified on national security
or foreign policy grounds. It does not perform its declared task of aprotecting the nation from
foreign terrorist entry into the United States.a To the contrary, the Order disrupts thousands of
lives, including those of refugees and visa holders all previously vetted by standing procedures
that the Administration has not shown to be inadequate. It could do long-term damage to our
national security and foreign policy interests, endangering U.S. troops in the field and disrupting
counterterrorism and national security partnerships. It will aid ISILas propaganda effort and
serve its recruitment message by feeding into the narrative that the United States is at war with
Islam. It will hinder relationships with the very communities that law enforcement professionals
need to address the threat. It will have a damaging humanitarian and economic impact on the
lives and jobs of American citizens and residents. And apart from all of these concerns, the
Order offends our nationas laws and values.

2

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4.
There is no national security purpose for a total bar on entry for aliens from the
seven named countries. Since September 11, 2001, not a single terrorist attack in the United
States has been perpetrated by aliens from the countries named in the Order. Very few attacks on
U.S. soil since September 11, 2001 have been traced to foreign nationals at all. The
overwhelming majority of attacks have been committed by U.S. citizens. The Administration has
identified no information or basis for believing there is now a heightened or particularized future
threat from the seven named countries. Nor is there any rational basis for exempting from the
ban particular religious minorities (e.g., Christians), suggesting that the real target of the ban
remains one religious group (Muslims). In short, the Administration offers no reason why it
abruptly shifted to group-based bans when we have a tested individualized vetting system
developed and implemented by national security professionals across the government to guard
the homeland, which is continually re-evaluated to ensure that it is effective.
5.
In our professional opinion, the Order will harm the interests of the United States
in many respects:
a. The Order will endanger U.S. troops in the field. Every day, American
soldiers work and fight alongside allies in some of the named countries who
put their lives on the line to protect Americans. For example, allies who
would be barred by the Order work alongside our men and women in Iraq
fighting against ISIL. To the extent that the Order bans travel by individuals
cooperating against ISIL, we risk placing our military efforts at risk by sending
an insulting message to those citizens and all Muslims.
b. The Order will disrupt key counterterrorism, foreign policy, and national
security partnerships that are critical to our obtaining the necessary
information sharing and collaboration in intelligence, law enforcement,
military, and diplomatic channels to address the threat posed by terrorist
groups such as ISIL. The international criticism of the Order has been intense,
and it has alienated U.S. allies. It will strain our relationships with partner
countries in Europe and the Middle East, on whom we rely for vital
counterterrorism cooperation, undermining years of effort to bring them closer.
By alienating these partners, we could lose access to the intelligence and
resources necessary to fight the root causes of terror or disrupt attacks
launched from abroad, before an attack occurs within our borders.
c. The Order will endanger intelligence sources in the field. For current
information, our intelligence officers may rely on human sources in some of
the countries listed. The Order breaches faith with those very sources, who
have risked much or all to keep Americans safe a and whom our officers had
promised always to protect with the full might of our government and our
people.
d. Left in place, the Executive Order will likely feed the recruitment narrative
of ISIL and other extremists that portray the United States as at war with
Islam. As government officials, we took every step we could to counter
violent extremism. Because of the Orderas disparate impact against Muslim
travelers and immigrants, it feeds ISILas narrative and sends the wrong
message to the Muslim community here at home and all over the world: that
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the U.S. government is at war with them based on their religion. The Order
may even endanger Christian communities, by handing ISIL a recruiting tool
and propaganda victory that spreads their message that the United States is
engaged in a religious war.
e. The Order will disrupt ongoing law enforcement efforts. By alienating
Muslim-American communities in the United States, it will harm our efforts
to enlist their aid in identifying radicalized individuals who might launch
attacks of the kind recently seen in San Bernardino and Orlando.
f. The Order will have a devastating humanitarian impact. When the Order
issued, those disrupted included women and children who had been victimized
by actual terrorists. Tens of thousands of travelers today face deep uncertainty
about whether they may travel to or from the United States: for medical
treatment, study or scholarly exchange, funerals or other pressing family
reasons. While the Order allows for the Secretaries of State and Homeland
Security to agree to admit travelers from these countries on a case-by-case
basis, in our experience it would be unrealistic for these overburdened
agencies to apply such procedures to every one of the thousands of
affected individuals with urgent and compelling needs to travel.
g. The Order will cause economic damage to American citizens and residents.
The Order will affect many foreign travelers, particularly students, who
annually inject hundreds of billions into the U.S. economy, supporting well
over a million U.S. jobs. Since the Order issued, affected companies have
noted its adverse impacts on many strategic economic sectors, including
defense, technology, medicine, culture and others.
6.
As a national security measure, the Order is unnecessary. National security-based
immigration restrictions have consistently been tailored to respond to: (1) specific, credible
threats based on individualized information, (2) the best available intelligence and (3) thorough
interagency legal and policy review. This Order rests not on such tailored grounds, but rather, on
(1) general bans (2) not supported by any new intelligence that the Administration has claimed,
or of which we are aware, and (3) not vetted through careful interagency legal and policy review.
Since the 9/11 attacks, the United States has developed a rigorous system of security vetting,
leveraging the full capabilities of the law enforcement and intelligence communities. This vetting
is applied to travelers not once, but multiple times. Refugees receive the most thorough vetting of
any traveler to the United States, taking on the average more than a year. Successive
administrations have continually worked to improve this vetting through robust informationsharing and data integration to identify potential terrorists without resorting to a blanket ban on all
aliens and refugees. Because various threat streams are constantly mutating, as government
officials, we sought continually to improve that vetting, as was done in response to particular
threats identified by U.S. intelligence in 2011 and 2015. Placing additional restrictions on
individuals from certain countries in the visa waiver program aas has been done on occasion in
the past a merely allows for more individualized vettings before individuals with particular
passports are permitted to travel to the United States.
7.
In our professional opinion, the Order was ill-conceived, poorly implemented and
ill-explained. The aconsidered judgmenta of the President in the prior cases where courts have
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deferred was based upon administrative records showing that the Presidentas decision rested on
cleared views from expert agencies with broad experience on the matters presented to him.
Here, there is little evidence that the Order underwent a thorough interagency legal and policy
processes designed to address current terrorist threats, which would ordinarily include a review
by the career professionals charged with implementing and carrying out the Order, an
interagency legal review, and a careful policy analysis by Deputies and Principals (at the cabinet
level) before policy recommendations are submitted to the President. We know of no
interagency process underway before January 20, 2017 to change current vetting procedures, and
the repeated need for the Administration to clarify confusion after the Order issued suggest that
that Order received little, if any advance scrutiny by the Departments of State, Justice, Homeland
Security or the Intelligence Community. Nor have we seen any evidence that the Order resulted
from experienced intelligence and security professionals recommending changes in response to
identified threats.
8.
The Order is of unprecedented scope. We know of no case where a President has
invoked his statutory authority to suspend admission for such a broad class of people. Even after
9/11, the U.S. Government did not invoke the provisions of law cited by the Administration to
broadly bar entrants based on nationality, national origin, or religious affiliation. In past cases,
suspensions were limited to particular individuals or subclasses of nationals who posed a specific,
articulable threat based on their known actions and affiliations. In adopting this Order, the
Administration alleges no specific derogatory factual information about any particular recipient
of a visa or green card or any vetting step omitted by current procedures.
9.
Maintaining the district courtas temporary restraining order while the underlying
legal issues are being adjudicated would not jeopardize national security. It would simply
preserve the status quo ante, still requiring that individuals be subjected to all the rigorous legal
vetting processes that are currently in place. Reinstating the Executive Order would wreak
havoc on innocent lives and deeply held American values. Ours is a nation of immigrants,
committed to the faith that we are all equal under the law and abhor discrimination, whether
based on race, religion, sex, or national origin. As government officials, we sought diligently to
protect our country, even while maintaining an immigration system free from intentional
discrimination, that applies no religious tests, and that measures individuals by their merits, not
stereotypes of their countries or groups. Blanket bans of certain countries or classes of people are
beneath the dignity of the nation and Constitution that we each took oaths to protect. Rebranding
a proposal first advertised as a aMuslim Bana as aProtecting the Nation from Foreign Terrorist
Entry into the United Statesa does not disguise the Orderas discriminatory intent, or make it
necessary, effective, or faithful to Americaas Constitution, laws, or values.

5

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10.
For all of the foregoing reasons, in our professional opinion, the January 27
Executive Order does not further a but instead harms a sound U.S. national security and foreign
policy.
Respectfully submitted,
s/MADELEINE K. ALBRIGHT*
s/AVRIL D. HAINES
s/MICHAEL V. HAYDEN
s/JOHN F. KERRY
s/JOHN E. McLAUGHLIN
s/LISA O. MONACO
s/MICHAEL J. MORELL
s/JANET A. NAPOLITANO
s/LEON E. PANETTA
s/SUSAN E. RICE
*All original signatures are on file with Harold Hongju Koh, Rule of Law Clinic, Yale Law School,
New Haven, CT. 06520-8215 203-432-4932
We declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct. [Individual signature pages follow]

6

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WKW

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If}: EELHEIJ this day If 1m 5'

If? 'lr' .

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this 5'h day of February, 2017

HNF. ERRY

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73

NITHJOY'ICW'g NIHO

LIOZ'KmnrqeCJo f,ep q,g slql

CgJOlgXg

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EXECUTED this 5? day 0! Febmaty. 2017

527 72/.

LISA O. HONACO

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EXECUTED this 5th day of February, 2017

__________/s/_________________
JANET A. NAPOLITANO

000050001? F00 0010500075 00000800049)
02/05/2017 13=??0?170510a 02/06/2017, 000103023020 DkrEntry: 28-2, Page 16 of 17 - [0000

13

EXECUTED this 5lh day of Fabruary, 2:017

13610 E. PANETTA-

13

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EXECUTED this 5th day of February, 2017

________/s/___________________
SUSAN E. RICE