Trump v. International Refugee Assistance Project Brief Amici Curiae

    Nos. 16-1436 & 16-1540

In  The

Supreme Court of tlje Mniteb States
Donald J. Trump,

President of the U nited States, et al.,
Petitioners,

V.

International Refugee Assistance Project, et al..
Respondents.

Donald J. Trump,
President of the United States, et al.,

Petitioners,
V.

State of Hawaii, et al..
Respondents.

On Writs of Certiorari to the 
United States Courts of Appeals 

for the Fourth and Ninth Circuits

BRIEF OF NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC.

AS AMICUS CURIAE IN SUPPORT OF 
RESPONDENTS INTERNATIONAL REFUGEE 

ASSISTANCE PROJECT, ETAL.

Sherrilyn a . Ifill 
Director-Counsel 

Janai S. N elson 
Samuel Spital 
J i n He e Lee
NAACP Legal Defense «& 

Educational Fund , Inc . 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

Ajmel Quereshi 
Counsel of Record 

Christopher Kemmitt 
NAACP Legal Defense & 

Educational Fund , Inc . 
1444 I Street NW 
Washington, DC 20005 
(202) 682-1300 
aquereshi@naacpldf.org

September 18, 2017

mailto:aquereshi@naacpldf.org


1

TABLE OF CONTENTS
TABLE OF AUTHORITIES.....................................iii
INTEREST OF AMICUS CURIAE...........................1
INTRODUCTION AND

SUMMARY OF ARGUMENT..............................3
ARGUMENT............................................................... 6
I. OUR COUNTRTS LONG HISTORY OF

SANCTIONING THE STEREOTYPE THAT 
CERTAIN RACES OR ETHNICITIES ARE 
INHERENTLY DANGEROUS HAS BEEN 
A SOURCE OF DEEP NATIONAL SHAME 
AND IS ANATHEMA TO THE 
FOUNDATIONAL PRINCIPLES OF OUR 
CONSTITUTIONAL DEMOCRACY................... 6
A. Slavery, Jim Crow, and Lynching................. 7
B. The Chinese Exclusion Act...........................13
C. The Japanese-American Internm ent.......... 17

II. THE EXECUTIVE ORDER AT ISSUE
PUNISHES INDIVIDUALS BASED ON 
THEIR RELIGION, HARKENING BACK 
TO SHAMEFUL PERIODS OF OUR 
NATION’S HISTORY..........................................22
A. The Executive Order Is Based on, and

Perpetuates, the False and Pernicious 
Stereotype that Muslims Are Inherently 
Dangerous.......................................................23

B. The Order, if Approved, Would
Contribute to Increasing Animosity and 
Violence Towards Innocent Muslim- 
Americans....................................................... 29



11
CONCLUSION.........................................................32

TABLE OF AUTHORITIES

CASES: PAGE(S)

Buck V. Davis,
137 S. Ct. 759 (2017).........................................  1, 3,4

Brown v. Board of Education,
347 U.S. 483 (1954).....................................................1

Chae Chan Ping v. United States,
130 U.S. 581 (1889).................................................  16

Davis V. Ayala,
135 S. Ct. 2187 (2015)................................................ 4

Griggs V. Duke Power Co.,
401 U.S. 424 (1971).....................................................1

Korematsu v. United States,
323 U.S. 214 (1944)...........................................  13, 20

Korematsu v. United States,
584 F. Supp. 1406 (N.D. Cal. 1984)....................... 22

Lochner v. New York,
198 U.S. 45 (1905)............................................... 12-13

McCleskey v. Kemp,
481 U.S. 279 (1987).....................................................1

Obergefell v. Hodges,
135 S. Ct. 2584 (2015)................................................ 2



Ill

PAGE(S)

Oyama v. California,
332 U.S. 633 (1948)..............................  13, 14, 17, 18

Pena-Rodriguez u. Colorado,
137 S. Ct. 855 (2017)................................ 2, 3, 4, 5, 6

Plessy V. Ferguson,
163 U.S. 537 (1896).................................................  10

Rose V. Mitchell,
443 U.S. 545 (1979).................................................... 4

Scott V. Sandford,
60 U.S. (19 How.) 393 (1857)................................... 9

Shelby County v. Holder,
133 S. Ct. 2612 (2013)................................................ 1

Shelley v. Kraemer,
334 U.S. 1 (1948).........................................................1

Smith V. Allwright,
321 U.S. 649 (1944).................................................... 1

Takahashi v. Fish and Game Comm’n,
334 U.S. 410 (1948).................................................... 2

Turner v. Murray,
476 U.S. 28 (1986)...................................................... 3

United States v. Clary,
846 F. Supp. 768 (E.D. Mo. 1994), rev’d on other 
grounds by 34 F.3d 709 (8th Cir. 1994)...................9



IV

PAGE(S)

United States v. Rutherford County,
No. 12 Civ. 0737,
2012 WL 2930076 (M.D. Tenn. July 18, 2012)..... 31

United States v. Windsor,
133 S. Ct. 2675 (2013)............................................... 2

CONSTITUTIONAL PROVISIONS. STATUTES 
& LEGISLATIVE MATERIALS:

U.S. Const.
Amend. 1 ...................................................................... 4
Amend. XIV................................................................. 4

8U.S.C.A. § 1152(a)(1)(A)............................................. 4

H. Res. 683, 112th Cong. (2012)............................ 16-17

H. Res. 201, 112th Cong. (2011).................................13

H. Res. 194, 111th Cong. (2009).................................12

H. Res. 442, 100th Cong. (1987)..................................22

S. Con. Res. 26, 111th Cong. (2009).......................... 12

S. Res. 373, 114th Cong. (2015)...................................22

S. Res. 201, 112th Cong. (2011).....................15, 16, 17

S. Res. 39, 109th Cong. (2005).................................... 12



V

PAGE(S)

OTHER AUTHORITIES:

The American Presidency Project, Ronald Reagan 
XL President of the United States: 1981-19S9 
(Aug. 10, 1988), http://www.presidency.ucsb.edu/ 
ws/?pid=36240......................................................... 22

Aoki, Keith, “Foreign-Ness” & Asian American 
Identities: Yellowface, World War II  Propaganda, 
and Bifurcated Racial Stereotypes,
4 Asian Pac. Am. L.J. 1 (1996)........ 13-14, 15, 18-19

Associated Press, How Donald Trump’s Plan to Ban 
Muslims Has Evolved, Fortune (Jun. 28, 2016), 
http://fortune.eom/2016/06/28/donald-trump- 
muslim-ban/......................................................... 24-25

Aziz, Sahar F., From the Oppressed to the 
Terrorist: Muslim-American Women in the 
Crosshairs of Intersectionality, 9 Hastings 
Race & Poverty L.J. 191 (2012).......................30, 31

Baxter, R. Scott, The Response of California’s Chinese 
Populations to the Anti-Chinese Movement, 42 
Historical Archaeology 29 (2008)............................ 14

Bell, Jeannine, The Fair Housing Act and 
Extralegal Terror, 41 Ind. L. Rev. 537 (2008)......  10

Budiansky, Stephen, The Bloody Shirt: Terror 
After Appomattox (Viking Books 2008)...................9

http://www.presidency.ucsb.edu/
http://fortune.eom/2016/06/28/donald-trump-muslim-ban/
http://fortune.eom/2016/06/28/donald-trump-muslim-ban/


VI

PAGErS)

Burns, Rebecca, Rage in the Gate City: The Story 
of the 1906 Atlanta Race Riot (Univ. of Georgia 
Press rev. ed. 2009).................................................. 11

Butler, Paul, By Any Means Necessary: Using 
Violence and Subversion to Change Unjust Law,
50 UCLA L. Rev. 721 (2003)...................................10

Carroll, Lauren, Fact-Checking Trump’s Claim that 
Thousands in New Jersey Cheered When World 
Trade Center Tumbled, Politifact (Nov. 22, 2015, 
6:17 PM), http://www.politifact.com/ 
truth-o-meter/statements/2015/nov/22/donald- 
trump/fact-checking-trumps-claim-thousands-new- 
jersey-ch/.................................................................... 25

Carter, William M., Jr., A Thirteenth Amendment 
Framework for Combating Racial Profiling, 39 
Harv. C.R.-C.L. L. Rev. 17 (2004)............................. 8

Carter, William M., Jr., Race, Rights and the 
Thirteenth Amendment: Defining the Badges 
and Incidents of Slavery, 40 U.C. Davis L. Rev.
1311 (2007).................................................................. 8

Commission on Wartime Relocation and 
Internment of Civilians, VRH9-KAGV,
Personal Justice Denied (1984).......................passim

Cottrol, Robert J., and Raymond T. Diamond, The 
Second Amendment: Toward an Afro-Americanist 
Reconsideration, 80 Geo. L.J. 309 (1991).............. 10

http://www.politifact.com/


Vll

PAGE(S)

Davis, Angela Y., Racialized Punishment and 
Prison Abolition, in the Angela Y.
Davis Reader 96 (1998)........................................... 9

Diamond, Jeremy, Donald Trump: Ban all Muslim 
travel to U.S., CNN.com (Dec. 8, 2015, updated 4:18 
AM), http://www.cnn.eom/2015/12/07/ 
politics/donald-trump-muslim-ban- 
immigration/index.html..........................................27

Diamond, Jeremy, Trump Would ‘Certainly
Implement’ National Database for U.S. Muslims, 
CNN.com, (Nov. 20, 2015, 12:18 PM), 
http://www.cnn.eom/2015/ll/19/politics/donald- 
trump-barack-obama-threat-to-country/...............27

Domonoske, Camila, White Supremacist Charged 
With Terrorism Over Murder of Black Man,
NPR.org (Mar. 28, 2017, 3:05 PM), 
http ://www .npr.org/ sections/thetwo - 
way/2017/03/28/521805165/white-supremacist- 
charged-with-terrorism-over-murder-of-black-man 

..................................................26

Equal Justice Initiative, Lynching in America: 
Confronting the Legacy of Racial Terror 
(2d ed. 2015)............................................................ 11

http://www.cnn.eom/2015/12/07/
http://www.cnn.eom/2015/ll/19/politics/donald-trump-barack-obama-threat-to-country/
http://www.cnn.eom/2015/ll/19/politics/donald-trump-barack-obama-threat-to-country/


Vlll

PAGE(S)

Estepa, Jessica, ‘Preventing Muslim Immigration’ 
Statement Disappears from Trump’s Campaign 
Site, USA Today (May 9, 2017, 6:03 AM), 
https://www.usatoday.com/story/news/politics/onpol 
itics/2017/05/08/preventing-muslim-immigration- 
statement-disappears-donald-trump-campaign- 
site/101436780/.........................................................27

Finkelman, Paul, Coping with a New “Yellow Peril”: 
Japanese Immigration, The Gentleman’s 
Agreement, and the Coming of World War II,
117 W. Va. L. Rev. 1409 (2015).................  13, 14, 18

Finkelman, Paul, The Crime of Color,
67 Tul. L. Rev. 2063 (1993)...................................8, 9

Fisher, William W. Ill, Ideology and Imageryin 
the Law of Slavery, 68 Chi.-Kent. L. Rev.
1051 (1993)...............................................................7-8

Foner, Eric, Give Me Liberty!: An American 
History Vol. 2, 535 (2d ed. 2009)...............................9

Gabriel, Trip, Donald Trump Says He’d ‘Absolutely’ 
Require Muslims to Register, N.Y. Times, Nov. 20, 
2015, 1:31 AM),
https://www.nytimes.com/politics/first- 
draft/2015/11/20/donald-trump-says-hed- 
absolutely-require-muslims-to-register/.................27

Greene, Jamal, The Anticanon,
125 Harv. L. Rev. 379 (2011)....................... 6, 13, 21

https://www.usatoday.com/story/news/politics/onpol
https://www.nytimes.com/politics/first-draft/2015/11/20/donald-trump-says-hed-absolutely-require-muslims-to-register/
https://www.nytimes.com/politics/first-draft/2015/11/20/donald-trump-says-hed-absolutely-require-muslims-to-register/
https://www.nytimes.com/politics/first-draft/2015/11/20/donald-trump-says-hed-absolutely-require-muslims-to-register/


IX

PAGE(S)

Grossman, Kyle, The Untold Story of the State 
Filibuster: The History and Potential of a 
Neglected Parliamentary Device,
88 S. Cal. L. Rev. 413 (2015).................................. 12

Hensch, Mark & Jesse Byrnes, Trump: Frankly,
We’re Having Problems with the Muslims, The Hill 
(Mar. 22, 2016, 8:56 AM), http://thehill.com/ 
blogs/ballot-hox/presidential-races/273857-trump- 
frankly-were-having-problems-with-the-muslims 24

Higginbotham, A. Leon, Jr., In the Matter of 
Color: Race and the American Legal Process:
The Colonial Period (1978)...................................... 7

Howard, John, Concentration Camps on the Home 
Front: Japanese Americans in the House of Jim 
Crow (Univ. of Chicago Press 2008).................11-12

Johnson, Brent, Trump: ‘Thousands’ in Jersey City 
Cheered on 9/11, NJ.com (Nov. 23, 2015, 5:35 PM), 
http://www.nj.com/politics/index.ssR2015/ll/trump 
_thousands_in_jersey_city_cheered_on_91 l.html 25

Jordan, Winthrop D., White Over Black: American 
Attitudes Toward the Negro, 1550-1812 (1968)....7

Lee, Erika, The Chinese Exclusion Example: Race, 
Immigration, and American Gatekeeping, 1882- 
1924, 21 Journal of American Ethnic History 
36 (2002)................................................ 15, 16, 17, 18

http://thehill.com/
http://www.nj.com/politics/index.ssR2015/ll/trump


X

PAGE(S)

Leinwand, Donna, More States Enter Debate on 
Sharia Law, USA Today (Dec. 9, 2010, 10:29 AM), 
http://usatoday30.usatoday.eom/news/nation/2010- 
12-09-shariaban09_ST_N.htm................................30

Ligon, Richard, A True & Exact History of the 
Island of Barbados (1657)....................................... 7

Malkin, Bonnie & Martin Pengelly, Portland Attack: 
Trump Says Victims Stood Up to “Hate and 
Intolerance,”The Guardian (May 29, 2017), 
https://www.theguardian.com/us-news/2017/may/ 
29/portland-attack-donald-trump-called-on-to- 
make-statement-about-double................................26

McKinley, James C., Jr., Oklahoma Surprise: Islam 
as an Election Issue, N.Y. Times, Nov. 15, 2010... 30

Memorandum from U.S. Dep’t of Homeland Sec., 
Citizenship Likely an Unreliable Indicator of 
Terrorist Threat in the United States, as reported 
by Rick Jervis, DHS Memo Contradicts Threats 
Cited by Trump’s Travel Ban, U.S.A. Today 
(Feb. 25, 2017, 3:36 PM), http://www.usatoday.com/ 
story/news/2017/02/24/dhs-memo-contradict-travel- 
ban-trump/98374184/......................................... 28-29

Merica, Dan, Trump Says Both Sides To Blame Amid 
Charlottesville Backlash, CNN.com (Aug. 16, 2017, 
updated 1:14 AM), http://www.cnn.eom/2017/08/15/ 
politics/trump-charlottesville-delay/index.html... 26

http://usatoday30.usatoday.eom/news/nation/2010-12-09-shariaban09_ST_N.htm
http://usatoday30.usatoday.eom/news/nation/2010-12-09-shariaban09_ST_N.htm
https://www.theguardian.com/us-news/2017/may/
http://www.usatoday.com/
http://www.cnn.eom/2017/08/15/


XI

PAGE(S)

N atl Park Serv., U.S. Dep’t of the Interior, NPS 
Ethnography: African American Heritage & 
Ethnography: Laws that Bound, 
https://www.nps.gOv/ethnography/aah/aaheritage/h 
istContextsE.htm (last visited Sept. 17, 2017).......7

Olmsted, Roger, The Chinese Must Go!, 50 Cal.
Hist. Q.J. Cal. Hist. Soc’y 285 (1971).................... 15

Otterman, Sharon, Mosque Is Blocked in New 
Jersey, but Dispute Is Far from Over,
N.Y. Times (Mar. 10, 2017),
https://www.nytimes.eom/2017/03/10/nyregion/mos 
que-hayonne-new-jersey.html................................ 31

Pokorak, Jeffrey J., Rape as a Badge of Slavery: 
The Legal History of, and Remedies for. 
Prosecutorial Race-of-Victim Charging 
Disparities, 7 Nev. L.J. 1 (2006)....................... 10

Reilly, Katie, Donald Trump on Proposed Muslim 
Ban: “You Know My Plans,”Time (Dec. 21, 2016), 
http://time.com/4611229/donald-trump-herlin- 
attack/.......................................................................25

Reilly, Ryan J., Oklahoma Anti-Sharia Constitutional 
Amendments Struck Down by Federal Judge, 
Huffington Post (Aug. 16, 2013),
http://www.huffi.ngtonpost.com/2013/08/15/oklahom 
a-sharia-constitution n 3764313.html.................30

https://www.nps.gOv/ethnography/aah/aaheritage/h
https://www.nytimes.eom/2017/03/10/nyregion/mos
http://time.com/4611229/donald-trump-herlin-attack/
http://time.com/4611229/donald-trump-herlin-attack/
http://www.huffi.ngtonpost.com/2013/08/15/oklahom


Xll

PAGE(S)

Remnick, David, Charleston and the Age of Obama, 
The New Yorker (June 19, 2015), 
https://www.newyorker.com/news/daily- 
comment/charleston-and-the-age-of-obama......... 11

Saito, Natsu Taylor, Alien and Non-Alien Alike: 
Citizenship, “Foreignness,”and Racial Hierarchy in 
American Law, 76 Or. L. Rev. 261 (1997)......  13, 14

Saito, Natsu Taylor, Model Minority, Yellow 
Peril: Functions of “Foreignness” in the 
Construction of Asian American Legal Identity,
4 Asian L.J. 71 (1997).............................................  14

Schleifer, Theodore, Donald Trump: “I  think Islam 
Hates Ds,” CNN.com (Mar. 10, 2016), 
http ://ww w. cnn. com/2016/03/09/ 
politics/donald-trump-islam-hates-us/index.html 24

Serrano, Susan Kiyomi & Dale Minami, Korematsu 
V. United States: A “Constant Caution” in a 
Time of Crisis, 10 Asian L.J. 37 (2003).................  19

7 The Statutes At Large Of South Carolina 352 
(Thomas Cooper and David J. McCord, eds.) 
(1836-41)...................................................................... 7

Trump, Donald J. (@realDonaldTrump), Twitter 
(Sept. 15, 2017, 3:54 AM),
https://twitter.com/realDonaldTrump/status/90864 
5126146265090......................................................... 28

https://www.newyorker.com/news/daily-comment/charleston-and-the-age-of-obama
https://www.newyorker.com/news/daily-comment/charleston-and-the-age-of-obama
https://twitter.com/realDonaldTrump/status/90864


X l l l

PAGE(S)

Wang, Amy B., Trump Asked for a “Muslim Ban,” 
Giuliani Says — and Ordered a Commission To Do 
It “LegallyW ash. Post (Jan. 29, 2017), 
https://www.washingtonpost.com/news/the- 
fi.x/wp/2017/01/29/trump-asked-for-a-muslim-ban- 
giuliani-says-and-ordered-a-commission-to-do-it- 
legally/......................................................................28

https://www.washingtonpost.com/news/the-fi.x/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/
https://www.washingtonpost.com/news/the-fi.x/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/
https://www.washingtonpost.com/news/the-fi.x/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/
https://www.washingtonpost.com/news/the-fi.x/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-legally/


INTEREST OF AMICUS CURIAE^
For over 75 years, the NAACP Legal Defense and 

Educational Fund, Inc. (“LDF”) has strived—as its 
central mission—to secure the constitutional promise 
of equality for all people in the United States. From 
its earliest advocacy led by the late Supreme Court 
Justice Thurgood Marshall to last term’s decision in 
Buck V. Davis, 137 S. Ct. 759 (2017), LDF has litigated 
before this Court some of the most significant and 
pressing legal issues pertaining to discrimination in 
our country. See, e.g., Smith v. Allwright, 321 U.S. 649 
(1944) (exclusion of Black voters from primary 
election); Shelley v. Kraemer, 334 U.S. 1 (1948) (racial 
covenants on real estate transfers); Brown v. Board of 
Education, 347 U.S. 483 (1954) (racial segregation of 
public schools); Griggs v. Duke Power Co., 401 U.S. 424 
(1971) (unjustified disparate impact in employment 
discrimination); McCleskey v. Kemp, 481 U.S. 279 
(1987) (challenge to discriminatory application of 
death penalty); Shelby County v. Holder, 133 S. Ct. 
2612 (2013) (defense of constitutionality of Section 5 of 
the Voting Rights Act).

LDF’s commitment to, and advocacy for, equality 
under the law is not limited to the rights of African 
Americans. Indeed, throughout its history of civil 
rights advocacy, LDF has pressed for the equal 
treatment of other traditionally disfavored groups and 
individuals seeking equal protection of the laws. For 
example, LDF submitted an amicus brief in support of

' Pursuant to Supreme Court Rule 37.6, counsel for amicus 
curiae state that no counsel for a party authored this brief in 
whole or in part and that no person other than amicus curiae, its 
members, or its counsel made a monetary contribution to the 
preparation or submission of this brief. All parties have 
consented to the filing of this brief.



Petitioner Torao Tokahashi’s successful challenge to 
the State of California’s refusal to issue fishing 
licenses to non-citizens, including people of Japanese 
ancestry, who were federally barred at that time from 
obtaining United States citizenship amid growing 
anti-Japanese hostility in the aftermath of the Second 
World War. See Takdhashi u. Fish and Game Comm’n, 
334 U.S. 410 (1948). A long supporter of gay and 
lesbian rights, LDF also supported petitioners 
advancing the right to same-sex marriages in United 
States V. Windsor, 133 S. Ct. 2675 (2013), and 
Obergefell v. Hodges, 135 S. Ct. 2584 (2015). And, as 
recently as last year, LDF urged this Court to 
denounce a juror’s racial slurs, which explicitly 
associated a Mexican defendant’s race with a 
propensity for criminal and violent conduct. See Peha- 
Rodriguez v. Colorado, 137 S. Ct. 855 (2017).

The President’s Executive Order 13780, Protecting 
the Nation from Foreign Terrorist Entry into the 
United States, which inter alia bars entry of non­
citizens and refugees from six predominantly Muslim 
countries, raises grave constitutional concerns due to 
its reliance on a false and pernicious stereotype that 
associates Muslims with inherent dangerousness. 
LDF, therefore, has both the experience and expertise 
to assist the Court in its review of this case of national 
and historical importance.



INTRODUCTION AND 
SUMMARY OF ARGUMENT

Last term, this Court decided two cases in which 
criminal defendants were deemed dangerous based on 
stereotypes about their race or ethnicity. In Buck v. 
Davis, 137 S. Ct. 759 (2017), Duane Buck’s own 
“expert” witness testified at his capital trial that 
Mr. Buck was more likely to commit violent acts in the 
future because he is Black.^ The Court held that this 
testimony rendered Mr. Buck’s death sentence 
constitutionally intolerable because it appealed to a 
“particularly noxious strain of racial prejudice,” viz., 
the stereotype that Black men are “violence prone.”  ̂
In Pena-Rodriguez v. Colorado, 137 S. Ct. 855 (2017), 
Mr. Pena-Rodriguez was convicted of sexual assault 
following jury deliberations in which one juror stated 
that “Mexican men” are “physically controlling of 
women,” “take whatever they want,” and “nine times 
out of ten . . . were guilty of being aggressive toward 
women and young girls.”  ̂ This Court denounced the 
egregious racial stereotyping of Latino men and held 
that the Sixth Amendment right to an impartial trial 
required the consideration of this evidence even 
though statements made by jurors during 
deliberations are ordinarily inadmissible.

The resolution of both cases turned on “a basic 
premise of our criminal justice system: Our law 
punishes people for what they do, not who they are.”  ̂
Individuals may not be disfavored because of who they 
are, and they assuredly cannot be singled out for 
mistreatment because of their race, ethnicity, or

2 Buck, 137 S. Ct. at 768-69.
2 See id. at 776 (quoting Turner v. Murray, 476 U.S. 28, 35 (1986)).

Pena-Rodriguez, 137 S. Ct. at 862. 
5 Buck, 137 S. Ct. at 778.



religion.6 This prohibition is particularly important 
when the discriminatory conduct is motivated by the 
“powerful . . . stereotype” that an individual is 
“violence prone” because of who he isd That stereotype 
is a “toxin,” which “can be deadly [even] in small 
doses.”®

Nor are the victims of that toxin limited to its 
immediate targets. Our country’s long, fraught history 
of legalized discrimination demonstrates beyond 
peradventure that “racial bias implicates unique 
historical, constitutional, and institutional concerns.’’̂  
Whether embodied in criminal law or in national 
security directives, permitting racial prejudice to find 
a home in our legal system thwarts “the promise of 
equal treatment under the law that is so central to a
functioning democracy,”10 poisons public
confidence,”’!! and “injures . . . ‘the law as an 
institution, . . . the community at large, and . . . the 
democratic ideal reflected in the processes of our 
courts.”’!2 Consequently, “[i]t must become the 
heritage of our Nation to rise above racial 
classifications that are so inconsistent with . . . the

® See id.; Pefia-Rodriguez, 137 S. Ct. at 867; U.S. Const. Amend. 
XIV; cf. U.S. Const. Amend. I; 8 U.S.C.A. § 1152(a)(1)(A) (“[N]o 
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.”).
! Buck, 137 S. Ct. at 776; see also id. (describing race-as- 
dangerousness stereotypes as “a particularly noxious strain of 
racial prejudice”).
8 Id. at 777.
® Pena-Rodriguez, 137 S. Ct. at 868.
10 7d
11 Buck, 137 S. Ct. at 778 (quoting Davis v. Ayala, 135 S. Ct. 2187, 
2208 (2015)).
12 Id. (quoting Rose v. Mitchell, 443 U.S. 545, 556 (1979)).



equal dignity of all persons/’̂  ̂ The duty to confront 
animus is shared by all three branches, but this Court 
is obligated to enforce the Constitution’s guarantee 
against state-sponsored discrimination when the other 
branches abjure their duty to do sod“̂

That is precisely what has happened here. Through 
Executive Order 13780, the Executive Branch has 
banned individuals from six nations, whose residents 
are predominately Muslim, from entering the United 
States. As explained by the courts below, this ban is 
not based on the kind of legitimate considerations that 
ordinarily require substantial deference to the 
Executive Branch in matters of immigration. This ban 
is instead the result of the President’s endorsement of 
the particularly noxious stereotype that people from 
these countries are dangerous because of their 
religion. The deference owed to the President in 
immigration matters does not extend that far; it does 
not permit the Executive Branch to equate 
race/ethnicity/religion with inherent dangerousness in 
order to decide who may enter this country. The 
President’s use of that stereotype, as the basis for 
public policy, demeans not only the targets of its 
discrimination; it demeans the integrity of our legal 
system and demeans us all.

Pena-Rodriguez, 137 S. Ct. at 867; see also id. at 871 (“The 
Nation must continue to make strides to overcome race-based 
discrimination.”).

Id. at 867.



6
ARGUMENT

I. OUR COUNTRY’S LONG HISTORY OF 
SANCTIONING THE STEREOTYPE THAT 
CERTAIN RACES OR ETHNICITIES ARE 
INHERENTLY DANGEROUS HAS BEEN A 
SOURCE OF DEEP NATIONAL SHAME AND 
IS ANATHEMA TO THE FOUNDATIONAL 
PRINCIPLES OF OUR CONSTITUTIONAL 
DEMOCRACY.

In Peha-Rodriguez, this Court observed that “[i]t is 
the mark of a maturing legal system that it seeks to 
understand and to implement the lessons of history/’̂  ̂
Unfortunately, our history provides no shortage of 
lessons in which unconstitutional discrimination was 
motivated or justified by the stereotype that certain 
people were inherently dangerous because of their race 
or ethnicity. In the past, the judicial branch has often 
permitted these discriminatory acts to stand and, in so 
doing, conferred its imprimatur to the actions. In 
many instances, Congress has acknowledged the anti- 
American character of the discrimination long after 
the harm, and this Court’s opinions endorsing the 
discrimination have been relegated to the “American 
anticanon”—the Supreme Court cases “that all 
legitimate constitutional decisions must be prepared 
to refute.”!®

Here, too, this Court is faced with Government 
action motivated by the stereotype that a group of 
people are dangerous because of who they are. This 
time, that group is defined by religion rather than race 
or ethnicity. But religion, like race, is a protected

15 137 S. Ct. at 871.
16 Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 
(2011).



7
category under the Constitution precisely because 
treating people differently based on either category is 
fundamentally inconsistent with our commitment to 
democracy and the rule of law. This Court, therefore, 
is confronted with a stark choice in this case: adding 
to the anticanon or enforcing the constitutional ban on 
the use of odious stereotypes in setting public policy.

A. Slavery, Jim Crow and Lynching
Our shameful history of using racial stereotypes of 

inherent dangerousness to drive the enactment of laws 
ostensibly designed to protect the public is instructive. 
The stereotype of African Americans—particularly, 
African-American men—as inherently dangerous 
dates back to the earliest contacts between colonial 
Americans and Africans. African Americans were 
described by white colonists as “barbarous, wild, [and] 
savage,”!® and “a bloody people” “as neer beasts as may 
be.”!9 Beginning in the 17th century, most American 
colonies enacted “slave codes” that relied on these 
racist beliefs to justify slavery and the separation of 
the races.20 For instance. South Carolina’s slave code 
stated that its creation was necessary to “restrain the

See, e.g., Winthrop D. Jordan, White Over Black: American 
Attitudes Toward the Negro, 1550—1812, at 28 (1968).

A. Leon Higginbotham, Jr., In the Matter of Color: Race and 
the American Legal Process: The Colonial Period 167 (1978) 
(quoting 7 The Statutes At Large Of South Carolina 352 (Thomas 
Cooper and David J. McCord, eds.) (1836-41)).

Richard Ligon, A True & Exact History of the Island of 
Barbados 46-47 (1657).
20 Nat’l Park Serv., U.S. Dep’t of the Interior, NFS Ethnography: 
African American Heritage & Ethnography: Laws that Bound,
https://www.nps.gov/ethnography/aah/aaheritage/histContextsE.
htm (last visited Sept. 17, 2017).

https://www.nps.gov/ethnography/aah/aaheritage/histContextsE


8
disorders, rapines and inhumanity[] to which [slaves] 
are naturally prone and inclined . . .”21

These laws, as well as the assumptions on which 
they were built, were critical to American slavery. 
“[T]he myth of blacks’ inherent, criminal propensity 
(and, particularly, violent criminality) was key to 
dehumanizing the enslaved as ‘beasts’ or chattel over 
whom brutal control was both needed and justified.”22 
Furthermore, the codes “added both the enforcement 
power and perceived legitimacy of the law to the 
customary stigmatization of blacks as inherently 
predisposed toward criminality.”23

Although the slave codes principally used the 
stereotype of African Americans as inherently 
dangerous to justify their forced labor, some provisions 
reflected that stereotype more directly. For example, 
because African Americans were seen as inherently 
dangerous, they were prohibited from meeting in 
groups of five or more, except for a narrow set of

21 William W. Fisher III, Ideology and Imagery in the Law of 
Slavery, 68 Chi.-Kent. L. Rev. 1051, 1060-61 (1993); Paul 
Finkelman, The Crime of Color, 67 Tul. L. Rev. 2063, 2099 (1993) 
(“Being black in South Carolina was inherently criminal, and . . . 
the public policy was always to keep as many blacks as possible 
in servitude or in jail. South Carolina believed that the 
alternatives were crime, slave rebellion, and ‘self-destruction.’”).
22 William M. Carter, Jr., Race, Rights and the Thirteenth 
Amendment: Defining the Badges and Incidents of Slavery, 40 
U.C. Davis L. Rev. 1311, 1373 (2007); see also William M. Carter, 
Jr., A Thirteenth Amendment Framework for Combating Racial 
Profiling, 39 Harv. C.R.-C.L. L. Rev. 17, 57 (2004) (“[Rjace-based 
criminal suspicion, legally enforced through the Slave Codes, was 
used to keep blacks in fear and in their ‘place’ during slavery. It 
also had the corollary effect of placing whites in constant fear of 
blacks, thereby making them more willing to accept black 
subordination in the name of white safety.”).
23 Carter. Race, Rights, supra note 22, at 1373



circumstances.24 The slave codes—and the
stereotypes they legitimized and amplified—later 
received the Supreme Court’s imprimatur in Scott v. 
Sandford,^^ when this Court cited them with approval 
in support of its holding that African Americans, 
whether enslaved or free, had no rights or privileges 
because they were not considered “citizens” under the 
United States Constitution.26

Following the Civil War and the enactment of the 
14th and 15th Amendments, efforts to codify anti- 
Black discrimination adapted and took new forms. 
Once again, the race-as-dangerousness stereotype was 
central. In the immediate aftermath of the Civil War, 
states passed “Black Codes,” which criminalized “such 
behavior as vagrancy, bre[a]ch of job contracts, 
absence from work, the possession of firearms, [and] 
insulting gestures or acts.”2'̂  The goal of these laws 
was to keep African Americans “as near to the 
condition of slavery as possible, and as far from the 
condition of the white man as [was] practicable.”28 The

Finkelman, supra note 21, at 2089. 
25 60 U.S. (19 How.) 393 (1857).
26 M
22 Angela Y. Davis, Racialized Punishment and Prison Abolition, 
in the Angela Y. Davis Reader 96, 100 (1998); Eric Foner, Give 
Me Liberty!: An American History Vol. 2, 535 (2d ed. 2009) 
(noting that the Black Codes “denied [African Americans] the 
right to testify against whites, serve on juries or in state militias, 
or to vote” and “declared that those who failed to sign yearly labor 
contracts could be arrested and hired out to white landowners”); 
United States v. Clary, 846 F. Supp. 768, 776 (E.D. Mo. 1994) 
(noting that Black codes “limited the rights of [African 
Americans] to own or rent property and permitted imprisonment 
for breach of employment contracts”) (quotation and citation 
omitted), rev’d on other grounds by 34 F.3d 709 (8th Cir. 1994).
26 Stephen Budiansky, The Bloody Shirt: Terror After 
Appomattox 25 (Viking Books 2008).



10

Black Codes included two notable features that turned 
on the stereotype that Black people are inherently 
dangerous or criminal. First, those codes prescribed 
differential punishment for crimes based on race.29 
This discrepancy was most pronounced in rape cases, 
where the death penalty was often “reserved for hlack 
men who raped white women.”20 Second, the codes 
restricted gun ownership by African Americans, and 
sometimes made it a crime for whites to even lend guns 
to them.31

In time, the Black Codes yielded to Jim Crow and 
the segregation of the races. As it did in Scott, this 
Court notoriously granted its stamp of approval to 
state-sanctioned race discrimination in Plessy v. 
Ferguson, 163 U.S. 537 (1896). The stereotype of Black 
criminality likewise continued to justify patently 
unconstitutional discrimination. For example, some 
sundown towns” had ordinances that literally 

prohibited Black people from being present in the town 
after a certain hour. 32 Flagrant discrimination against 
Black men accused of raping white women also 
continued to he prevalent.33

The stereotype that Black people are inherently 
dangerous criminals was likewise the foundation for

29 Jeffrey J. Pokorak, iJape as a Badge of Slavery: The Legal 
History of, and Remedies for, Prosecutorial Race-of-Victim 
Charging Disparities, 7 Nev. L.J. 1, 15 (2006); Paul Butler, By 
Any Means Necessary: Using Violence and Subversion to Change 
Unjust Law, 50 UCLA L. Rev. 721, 751 (2003).
90 Butler, supra note 29.
31 Robert J. Cottrol and Raymond T. Diamond, The Second 
Amendment: Toward an Afro-Americanist Reconsideration, 80 
Geo. L.J. 309, 345 & n.l78 (1991).

Jeannine Bell, The Fair Housing Act and Extralegal Terror 41 
Ind. L. Rev. 537, 541 (2008).
33 Id. at 22-34.



11
one of the most shocking episodes of our history: the 
lynching of at least 4,075 Black men, women, and 
children between 1877 and 1 9 5 0 . Government 
officials repeatedly justified their failure to hold the 
murderers accountable by claiming that the lynchings 
were necessary to prevent Black men from raping 
white women.

For example, in 1900, Senator Benjamin Tillman of 
South Carolina justified murders of Black people in 
South Carolina as follows: “We of the South have 
never recognized the right of the negro to govern white 
men, and we never will.” “We have never believed him 
to be the equal of the white man, and we will not 
submit to his gratifying his lust on our wives and 
daughters without lynching him.”^̂  In 1906, white 
mobs killed an unknown number of African Americans 
in Atlanta after unverified reports that four white 
women had been raped by Black men. When asked 
how to prevent these lynchings, the mayor of Atlanta 
stated: “The only remedy is to remove the cause. As 
long as the black brutes assault our white women, just 
so long will they be unceremoniously dealt with.” ®̂ As 
late as 1937, a Mississippi congressman opposed a 
federal anti-lynching law on the ground that it was “a 
bill to encourage rape” and would incite “the more

Equal Justice Initiative, Lynching in America; Confronting the 
Legacy of Racial Terror 5 (2d ed. 2015).
35 David Remnick, Charleston and the Age of Obama, The New 
Yorker (June 19, 2015), https://www.newyorker.com/news/daily- 
comment/charleston-and-the-age-of-obama.
3® Rebecca Burns, Rage in the Gate City: The Story of the 1906 
Atlanta Race Riot 134 (Univ. of Georgia Press rev. ed. 2009).

https://www.newyorker.com/news/daily-comment/charleston-and-the-age-of-obama
https://www.newyorker.com/news/daily-comment/charleston-and-the-age-of-obama


12
vicious element of the Negro race to attack white
women. ’37

Tragically, Congress never enacted an anti-lynching 
law, as Southern Democrats repeatedly filibustered 
bills that had passed the House in the 1920s and 
1 9 3 0 s . I n  apologizing for this failure in 2006, the 
Senate admitted that “protection against lynching was 
the minimum and most basic of Federal 
responsibilities,” and that the Senate refused repeated 
entreaties from civil rights groups to pass such
legislation.39

Slavery and Jim Crow remain our singular national 
shame because they stand in such stark contravention 
to what America purports to be. For centuries, the 
country that proclaimed that “all men were created 
equal” punished people for who they were, not what 
they did—and did so at an incalculable human cost. 
Both houses of Congress have issued formal apologies 
acknowledging “the fundamental injustice, cruelty, 
brutality, and inhumanity of slavery and Jim Crow,” 
and that “visceral racism against persons of African 
descent” was central to the creation and perpetuation 
of both systems.40

This Court’s majority opinions in Dred Scott and 
Plessy have faced a similar historical judgment. 
They—along with Lochner v. New York, 198 U.S. 45

John Howard, Concentration Camps on the Home Front: 
Japanese Americans in the House of Jim Crow 45 (Univ. of 
Chicago Press 2008).
38 Kyle Grossman, The Untold Story of the State Filibuster: The 
History and Potential of a Neglected Parliamentary Device, 88 S. 
Cal. L. Rev. 413, 436 (2015).
39 S. Res. 39, 109th Cong. (2005).
■•o H. Res. 194, 111th Cong. (2009); S. Con. Res. 26, 111th Cong. 
(2009).



13
(1905), and Korematsu v. United States, 323 U.S. 214 
(1944)—have been selected “by the broader legal and 
political culture” as “the American anticanon. Each 
case embodies a set of legal propositions that all 
legitimate constitutional decisions must be prepared 
to refute. Together, they map out the land mines of 
the American constitutional order . . . Tellingly, 
the anticanon is populated in the main by cases where 
this court acquiesced to legislative or executive actions 
that targeted individuals for mistreatment simply 
based on who they are.

B. The Chinese Exclusion Act
Drawn by the Gold Rush and the prospect of 

employment on the transcontinental railroad, 
thousands of Chinese immigrants moved to the west 
coast in the 1850s and 1860s .̂ 2 At first, the new 
immigrants were greeted with curiosity, admiration or 
indifference, but “such views were not long lasting.”^̂  
As more immigrants arrived from China, xenophobia 
and virulent anti-Chinese racism spread along the 
west coast.44 Once again, that racism frequently took 
the form of the race-as-dangerousness stereotype. The 
immigrants were cast “as invading ‘hordes’” with no 
individual identities and “inscribe [d with] qualities of 
inhumanity, paradoxical mindlessness, savagery, and

Greene, supra note 16, at 380-81.
42 H. Res. 201, 112th Cong. (2011); Natsu Taylor Saito, Alien and 
Non-Alien Alike: Citizenship, “Foreignness,” and Racial 
Hierarchy in American Law, 76 Or. L. Rev. 261, 299-300 (1997); 
Commission on Wartime Relocation and Internment of Civilians, 
VRH9-KAGV, Personal Justice Denied 29 (1984); Paul 
Finkelman, Coping with a New “Yellow Peril : Japanese 
Immigration, The Gentleman’s Agreement, and the Coming of 
World War II, 117 W. Va. L. Rev. 1409, 1422 (2015).
43 Finkelman, supra note 42, at 1422.
44 See id.; Oyama v. California, 332 U.S. 633 (1948).



14
brutality.”45 Other times, they were depicted as 
“criminals and prostitutes.”46 These stereotypes were 
broadly circulated by newspaper headlines and 
advertisements, organized interest groups, and 
various forms of media and entertainment.47

“The press and political parties pandered to these 
anti-Chinese attitudes,”46 and anti-Chinese racism 
was soon reflected in “lethal vigilante violence” and a 
raft of discriminatory legislation such as California’s 
1862 “Act to protect Free White Labor against 
competition with Chinese Coolie Labor, and to 
discourage the Immigration of the Chinese into the 
State of California.”49 Chinese immigrants were 
subjected to a dizzying array of penalties and 
prohibitions including, inter alia: a miner’s tax that 
disproportionately affected Chinese immigrants, a 
California Supreme Court decision prohibiting 
Chinese people from testifying against white people in 
courts of law, a constitutional amendment that 
prohibited “non-whites” from owning land, an anti­
miscegenation law that prohibited marriage between 
whites and “Mongolians,” and a law that prohibited 
“aliens” from fishing in California state waters.6°

Keith Aoki, “Foreign-Ness” & Asian American Identities: 
Yellowface, World War II Propaganda, and Bifurcated Racial 
Stereotypes, 4 Asian Pac. Am. L.J. 1, 32 (1996).

Saito, supra note 42, at 299.
See Aoki, supra note 45, at 20.

Commission on Wartime Relocation and Internment of 
Civilians, supra note 42, at 29.
‘‘s Finkelman, supra note 42, at 1422; Oyama, 332 U.S. at 651-52; 
Natsu Taylor Saito, Model Minority, Yellow Peril: Functions of 
Foreignness in the Construction of Asian American Legal 

Identity, 4 Asian L.J. 71, 79 (1997).
R. Scott Baxter, The Response of California’s Chinese 

Populations to the Anti-Chinese Movement, 42 Historical 
Archaeology 29, 30 (2008).



15
The statements of elected officials demonstrated the 

ubiquity of the “yellow peril” stereotype. For instance, 
Representative James A. Johnson of California 
described Chinese people as an “immense, teeming, 
swarming, seething hive of degraded humanity turned 
loosed upon our country” which threatened to “drown 
out and destroy our institutions and our race.”^̂  
Oregon Senator George H. Williams channeled the 
same stereotype when he urged the United States not 
to “deliver itself up to the political filth and moral 
pollution that are flowing with a fearfully increasing 
tide into our country from the shores of Asia.’’̂  ̂
Governor Stanford of California stated, “[t]he presence 
among us of numbers of degraded and distinct people 
must exercise a deleterious influence upon the 
superior race. . .

The anti-Chinese campaign culminated in
Congress’s enactment of the Chinese Exclusion Act in 
1882, which prohibited the immigration of Chinese 
laborers for a decade and precluded all Chinese 
immigrants from obtaining naturalized citizenship. 
The act “underscored the belief of some senators at the 
time t h a t .. . the United States is under God a country 
of Caucasians . . .  to be governed by white men” and 
that “the Chinese people were unfit to be naturalized,” 
“revolting,” and “like parasites.”^̂  The Chinese 
Exclusion Act was the country’s first immigration law 
to restrict immigrants because of their race and

Aoki, supra note 45, at 32.

Roger Olmsted, The Chinese Must Go!, 50 Cal. Hist. Q.J. Cal. 
Hist. Soc’y 285, 286 (1971).

Erika Lee, The Chinese Exclusion Example: Race, Immigration, 
and American Gatekeeping, 1882-1924, 21 Journal of American 
Ethnic History 36, 36 (2002).
55 S. Res. 201, 112th Cong. (2011).



16
c l a s s , b u t  not its last. Indeed, it launched six 
“decades of Federal legislation deliberately targeting 
the Chinese by race,” during which time many 
members of Congress claimed “that all persons of 
Chinese descent were . . . dangerous to the political 
and social integrity of the United States.”®'?

The pervasiveness of these stereotypes was 
demonstrated yet again when the Scott Act of 1888— 
an addendum to the Chinese Exclusion Act, which 
forbade Chinese laborers then abroad from returning 
to the United States—was challenged in this Court.®® 
In Chae Chan Ping v. United States, 130 U.S. 581 
(1889), the Court upheld Congress’s authority to set 
immigration policy and, in so doing, described Chinese 
immigrants as “vast hordes of . . . people crowding in 
upon us,” “who will not assimilate with us,” and are 
“dangerous to [the nation’s] peace and security.”®9 The 
Court also cited with approval the California 
constitutional convention of 1878, which claimed that 
the “immigration [of Chinese laborers] was in numbers 
approaching the character of an Oriental invasion, and 
was a menace to our civilization.’'®® Chae Chan Ping 
belongs in the anticanon, yet it remains the font of the 
current rule that Congress can exclude groups as part 
of its immigration policy.

Ultimately, Congress would recognize that the 
Chinese Exclusion Act and its myriad progeny were an 
affront to “the basic founding principles recognized in 
the Declaration of Independence that all persons are

Lee, supra note 54, at 37.
57 S. Res. 201, 112th Cong. (2011).
5® Chae Chan Ping v. United States, 130 U.S. 581 (1889). 
69 Id. at 606.
60 Id. at 595.



17
created equal” and apologized for its a c t i o n s . T h e  
Senate admitted that its actions “fostered an 
atmosphere of racial discrimination that deeply 
prejudiced the civil rights of Chinese immigrants,” 
“legitimized racial discrimination,” and “induced 
trauma that persists within the Chinese
community.”®̂

C. The Japanese-American Internment
The history leading up to the Japanese-American 

internment bears striking similarities to the events 
that resulted in the Chinese Exclusion Act. Japanese 
immigrants began to arrive in the United States in 
significant numbers around the turn of the 20th 
century. At the time, the Chinese Exclusion Act had 
succeeded in significantly reducing the Chinese 
population, and anti-Asian furor was on the wane.®® 
“But the arrival of the Japanese fanned anew the 
flames of anti-Oriental prejudice,” and “[hjistory then 
began to repeat itself.”®̂ “The political and cultural 
ideology that came to be used in the anti-Japanese 
movement immediately connected the new threat to 
the old Chinese one.”®® Newspaper headlines 
broadcast that the “Japanese [Were] Taking the Place 
of the Chinese,” and anti-Chinese stereotypes were 
applied to Japanese immigrants.®® People entering

S. Res. 201, 112th Cong. (2011); H. Res. 683, 112th Cong. 
(2012) .

62 S. Res. 201, 112th Cong. (2011).
66 Oyama, 332 U.S. at 652.
64 7d
65 Lee, supra note 54, at 36-37.
66 See id.; see also Commission on Wartime Relocation and 
Internment of Civilians, supra note 42, at 4 (“The anti-Japanese 
agitation also fed on racial stereotypes and fears: the ‘yellow peril’ 
of an unknown Asian culture achieving substantial influence on



18
the United States from Japan became “the new yellow 
peril.”®'̂  They were depicted as “unassimilable” and 
unexploitable cheap labor[,]” like the stereotype of 

Chinese immigrants before them, but were viewed as 
more “aggressive and warlike” as well as “tricky and 
unscrupulous.”68

Japanese immigrants became “a convenient target 
for political demagogues” in “all the major parties,” 
and “[pjolitical bullying was supported by organized 
interest groups.”®̂ As a result, Japanese people were 
subjected to a spate of discriminatory legislation in the 
first four decades of the 20th century. Japanese 
immigration was restricted in 1908 and banned in 
1924; Japanese immigrants were barred from 
obtaining American citizenship; and many western 
states forbade Japanese persons from owning land.™ 
The intention of this legislation was clear; “The 
Japanese menace’ was to be dealt with on a racial 
basis.’”̂ i

This history of political animosity and the creation 
of stereotypes that portrayed Japanese people as 
unassimilable and dangerous provided the backdrop 
for the Japanese-American internment.™ On

the Pacific coast or of a Japanese population alleged to be growing 
far faster than the white population.”).

Finkelman, supra note 42, at 1426.
Lee, supra note 54, at 36-37.

Commission on Wartime Relocation and Internment of 
Civilians, supra note 42, at 4.

''1 Oyama, 332 U.S. at 656.
■̂2 See Commission on Wartime Relocation and Internment of 
Civilians, supra note 42, at 4, 28, 34, 37; Aoki, supra note 45, at 
18 (“Likewise, it is hard to conceive of the mass internment of 
Japanese American citizens in 1942 without a background of



19
February 19, 1942—approximately ten weeks after the 
attack on Pearl Harbor—President Roosevelt issued 
Executive Order 9066, which granted to the Secretary 
of War the power to exclude all persons of Japanese 
ancestry from designated military zones on the west 
coastjs The government justified the order as a 
“military necessity,” though the necessity was founded 
on racial stereotypes of Japanese-Americans as 
dangerousJ^ General DeWitt, who proposed the 
relocation, justified his recommendation as follows: 
“The Japanese race is an enemy race and while many 
second and third generation Japanese born on 
American soil, possessed of United States citizenship, 
have become ‘Americanized,’ the racial strains are 
undiluted.”"̂  ̂ On another occasion. General Dewitt put 
his view more succinctly: “A Jap is a Jap.”'̂® Based on 
that justification, “the government banished 120,000 
Japanese Americans—two-thirds of whom were 
native-born U.S. citizens—from the West Coast and 
imprisoned them in ten desolate camps without 
charges, attorneys, indictment, or h e a r i n g s T h e y  
would remain in “bleak barracks camps” “surrounded 
by barbed wire and guarded by military police” until 
December 1944J®

pervasive and seemingly ‘natural’ stereotypical tropes serving to 
justify such internment.”).
’3 Susan Kiyomi Serrano & Dale Minami, Korematsu v. United 
States: A “Constant Caution” in a Time of Crisis, 10 Asian L.J. 37, 
40 (2003).

Commission on Wartime Relocation and Internment of 
Civilians, supra note 42, at 6.

Id. at 66 
Id. at 222.

”  Serrano and Minami, supra note 72, at 40.
Commission on Wartime Relocation and Internment of 

Civilians, supra note 42, at 2.



20
In stark contrast, although the United States was 

also at war with Germany and Italy, immigrants from 
those countries and their descendants were not treated 
similarly.’̂  ̂ They were instead granted individualized 
loyalty hearings to determine whether they, in fact, 
constituted a danger to the republic.®° Only Japanese- 
Americans were compelled en masse to report to 
internment camps on the theory that they were 
inherently dangerous and could not he trusted.^i

While 120,000 Japanese-American individuals were 
so detained, this Court considered the 
constitutionality of the exclusion order in Korematsu. 
The Court accepted the argument advanced by the 
Department of Justice and upheld the exclusion by 
endorsing the race-as-dangerousness stereotype. 
The Court stated; “To cast this case into outlines of 
racial prejudice, without reference to the real military 
dangers which were presented, merely confuses the 
issue.”®̂ In other words, the Court reasoned that 
sending over 100,000 Americans to internment camps 
because of their ethnicity did not reflect racial 
prejudice because Japanese Americans were 
inherently dangerous. Justice Murphy recognized the 
majority opinion for what it was: an endorsement of 
unconstitutional racial discrimination by the 
Executive Branch. He explained that “[sjuch exclusion 
goes over ‘the very brink of constitutional power’ and 
falls into the ugly abyss of racism .’’̂ ^

™ Id. at 3, 284-85.
80 Id. at 284-85.
81 Id. at 6, 56, 64, 66, 79, 80, 83, 222.
82 Korematsu, 323 U.S. at 223-24.
83 Id. at 223.
8'* Id. at 233 (Murphy, J., dissenting).



21
Over time, Justice Murphy’s dissent has been 

vindicated. In 1980, Congress established the 
Commission on Wartime Relocation and Internment of 
Civilians to investigate the Japanese-American 
internment. Its final report. Personal Justice Denied, 
concluded:

The promulgation of Executive Order 
9066 was not justified by military 
necessity, and the decisions which 
followed from it—detention, ending 
detention and ending exclusion—were 
not driven by analysis of military 
conditions. The broad historical causes 
which shaped these decisions were race 
prejudice, war hysteria and a failure of 
political leadership. Widespread 
ignorance of Japanese Americans 
contributed to a policy conceived in haste 
and executed in an atmosphere of fear 
and anger at Japan. A grave injustice 
was done to American citizens and 
resident aliens of Japanese ancestry who, 
without individual review or any 
probative evidence against them, were 
excluded, removed and detained by the 
United States during World War II.

Over time, Korematsu has assumed its rightful place 
in the anticanon,^® and the Japanese-American 
internment has elicited apologies from President 
Ronald Reagan, the House of Representatives, and the

Commission on Wartime Relocation and Internment 
Civilians, supra note 42, at 18.

Greene, supra note 16, at 380-83.

of



22
Senate.8'?' Indeed, the Senate expressed that “policies 
that discriminate against any individual based on the 
actual or perceived race, ethnicity, national origin, or 
religion of that individual would be . . .  a repetition of 
the mistakes of Executive Order 9066; and . . .  contrary 
to the values of the United States.Ӥ8 Indeed, Fred 
Korematsu—whose conviction for violating the 
internment order was upheld by this Court in 
Korematsu—had his conviction overturned by the 
district court on a coram nobis application in 1983.
II. THE EXECUTIVE ORDER AT ISSUE 

PUNISHES INDIVIDUALS BASED ON 
THEIR RELIGION, HARKENING BACK TO 
SHAMEFUL PERIODS OF OUR NATION’S 
HISTORY.

This Court’s recent decisions in Buck and Pena- 
Rodriguez make clear that courts will no longer 
tolerate the race-as-dangerous stereotyping that was 
used to justify the lynching of African Americans, the 
exclusion of Chinese immigrants, or the internment of 
thousands of Japanese Americans during World War 
II. Yet, history is now repeating itself as this Court is 
presented with another act of executive authority that 
penalizes a distinct group of people based on “who they 
are.”

Our Constitution confers broad authority on the 
President in the realm of immigration. But that 
authority has limits: the Executive cannot avoid

87 S. Res. 373, 114th Cong. (2015); H. Res. 442, 100th Cong. 
(1987); The American Presidency Project, Ronald Reagan XL 
President of the United States: 1981-1989 (Aug. 10, 1988), 
http;//www.presidency.ucsb.edu/ws/?pid=36240.
88 S. Res. 373, 114th Cong. (2015).
89 Korematsu v. United States, 584 F. Supp. 1406, 1420 (N D Cal 
1984).

http://www.presidency.ucsb.edu/ws/?pid=36240


23
scrutiny of actions motivated by racial or religious 
anim us by simply invoking the magic words “national 
security.” The President’s authority must always be 
exercised in a manner consistent with constitutional 
guarantees against arbitrary and impermissible 
discrimination.

Rather than relying on any legitimate concerns 
about national security, Executive Order 13780 is 
founded upon the pernicious stereotype that Muslims 
are inherently dangerous—a stereotype that is 
soundly refuted hy the millions of Muslims living 
peacefully and lawfully both in and outside the United 
States. Although this stereotype targets a new and 
distinct group, it bears a strong resemblance—in 
terms of its usage, its practical effect, and the 
constitutional issues it raises—to the stereotypes that 
have been used to target other minorities in the past.

A. The Executive Order Is Based On, and 
Perpetuates, the False and Pernicious 
Stereotype that Muslims Are Inherently 
Dangerous.

The record provides ample evidence that the 
Executive Order was motivated by a false and 
discriminatory belief that Muslims are inherently 
predisposed to violence. Indeed, just as the “expert” in 
Buck testified that Duane Buck was dangerous 
because he is Black, President Trump has made clear 
on multiple occasions that he believes Muslims are 
dangerous because they are Muslim. And it is that 
false stereotype that motivated the exclusion order at 
issue here.

A review of the text from Executive Order 13769, 
Protecting the Nation from Foreign Terrorist Entry into 
the United States, makes its motivation clear. That 
Order referenced the Muslim-as-dangerous stereotype



24
directly, citing “honor killings”—a frequently used 
stereotype that Muslims engage in violence against 
women—as its justification.

The evidence, however, is not limited to the text of 
that first Order. “Islam hates us.”9° Those three 
words, uttered by then-candidate Trump in March 
2016, make clear that he does not consider Muslims to 
be part of “us,” and also explain his view of Muslims as 
being inherently dangerous to “us.” President Trump’s 
spokeswoman, Katrina Pierson, noted shortly after he 
made that statement: “We’ve allowed this propaganda 
to spread all through the country that [Islam] is a 
religion of peace.”9i

Further, on the rare occasions when self-proclaimed 
Muslims have committed violent acts. President 
Trump has suggested that they did so because they 
were Muslim. For example, in March 2016, after a 
violent attack in Brussels, then-candidate Trump 
stated that Islam is the main source of global 
terrorism .92 He continued: “Frankly, we’re having 
problems with the Muslims.”93 In June 2016, after 
mass shootings by two self-proclaimed Muslims in San 
Bernardino, President Trump made clear that he 
believed the shootings showed that Muslims are 
predisposed toward violence. He called for a ban on 
Muslim immigration to the United States and 
commented that “many are saying that I [am] right to

90 Theodore Schleifer, Donald Trump: T Think Islam Hates Us,” 
CNN.com (Mar. 10, 2016), http://www.cnn.eom/2016/03/09/ 
politics/donald-trump-islam-hates-us/index.html.
91 J d .

92 Mark Hensch & Jesse Byrnes, Trump: Frankly, We’re Having 
Problems with the Muslims, The Hill (Mar. 22, 2016, 8:56 AM), 
http://thehill.com/blogs/ballot-hox/presidential-races/273857- 
trump-frankly-were-having-problems-with-the-muslims.

Id.

http://www.cnn.eom/2016/03/09/
http://thehill.com/blogs/ballot-hox/presidential-races/273857-trump-frankly-were-having-problems-with-the-muslims
http://thehill.com/blogs/ballot-hox/presidential-races/273857-trump-frankly-were-having-problems-with-the-muslims


25
do so.”94 When asked in December 2016 whether 
recent violence in Germany affected his plans to ban 
Muslims, he stated: “You know my plans. All along, 
I’ve been proven to be right. 100% correct. What’s 
happening is disgracefuL’’̂  ̂ Similarly, President 
Trump has claimed, falsely, that violent acts by 
individual Muslims have widespread support among 
other Muslims in the United States. At a September 
2015 campaign rally, he propagated the dangerous 
and unfounded falsehood that “thousands and 
thousands” of Muslims living in New Jersey cheered 
the attacks of September 11, 2011.9® That falsehood 
has been repeatedly disproved.®’̂

In sharp contrast, when individual white persons 
have committed terrorist acts in the name of white 
supremacy. President Trump has not suggested that 
white people are inherently dangerous or that their 
actions are supported by white people generally. He 
provided only a belated, and general, statement 
condemning violence after an Islamophobic white 
supremacist killed two men on a train in Portland, 
Oregon; said nothing when a white man traveled from

Associated Press, How Donald Trump s Plan to Ban Muslims 
Has Evolved, Fortune (Jun. 28, 2016), http://fortune.com/ 
2 0 16 /06/28/donald-trump-muslim-ban/.
86 Katie Reilly, Donald Trump on Proposed Muslim Ban: You 
Know My Plans,” Time (Dec. 21, 2016),
http ://time .com/4611229/donald-trump -berlin- attack/.
86 Brent Johnson, Trump: “Thousands” in Jersey City Cheered on
9/11, NJ.com (Nov. 23, 2015, 5:35  ̂ PM),
http://www.nj.com/politics/index.ssf/2015/ll/trump_thousands_i
n_jersey_city_cheered_on_911 .html.
87 Lauren Carroll, Fact-Checking Trump’s Claim that Thousands 
in New Jersey Cheered When World Trade Center Tumbled, 
Politifact (Nov. 22, 2015, 6:17 PM), http://www.pohtifact.com/ 
truth-o-meter/statements/2015/nov/22/donald-trump/fact-
checking-trumps-claim-thousands-new-jersey-ch/.

http://fortune.com/
http://www.nj.com/politics/index.ssf/2015/ll/trump_thousands_i
http://www.pohtifact.com/


26
Baltimore to New York to kill a Black person; and 
infamously blamed “both sides” after a white 
supremacist killed an anti-racist protester in 
Charlottesville, Virginia.9® The President’s selective 
response to these terrorist acts is telling. When 
terrorist acts have been committed by M u s lim 
individuals, the President has invoked the Muslim-as- 
dangerous stereotype by claiming the perpetrator 
committed the terrorist act because of his faith. By 
contrast, the President has never suggested that 
terrorist acts committed by white non-Muslims were 
the result of any group-based characteristic.

Having embraced the false and discriminatory view 
of Muslims, as a people, being prone to violent acts. 
President Trump has repeatedly reiterated that they, 
as well as their places of worship, should be subject to 
additional scrutiny and surveillance by law 
enforcement. In November 2015, President Trump 
promised that, if elected, he would order the 
surveillance of “certain mosques” and would have 
“absolutely no choice” but to order the closure of some 
of them. Then-candidate Trump additionally stated 
that he would “certainly implement” a national

Dan Merica, Trump Says Both Sides To Blame Amid 
Charlottesville Backlash, CNN.com (Aug. 16, 2017, updated 1:14 

http://www.cnn.eom/2017/08/15/politics/trump- 
charlottesville-delay/index.html; Bonnie Malkin & Martin 
Pengelly, Portland Attack: Trump Says Victims Stood Up to “Hate 
and Intolerance,” The Guardian (May 29, 2017),
https://www.theguardian.com/us-news/2017/may/29/portland- 
attack-donald-trump-called-on-to-make-statement-about-double; 
Camila Domonoske, White Supremacist Charged With Terrorism 
Over Murder of Black Man, NPR.org (Mar. 28, 2017, 3:05 PM), 
http://www.npr.org/sections/thetwo-way/2017/03/28/521805165/ 
white-supremacist-charged-with-terrorism-over-murder-of- 
black-man.

http://www.cnn.eom/2017/08/15/politics/trump-charlottesville-delay/index.html
http://www.cnn.eom/2017/08/15/politics/trump-charlottesville-delay/index.html
https://www.theguardian.com/us-news/2017/may/29/portland-attack-donald-trump-called-on-to-make-statement-about-double
https://www.theguardian.com/us-news/2017/may/29/portland-attack-donald-trump-called-on-to-make-statement-about-double
http://www.npr.org/sections/thetwo-way/2017/03/28/521805165/


27
database of all Muslims in the United States.9̂  When 
asked whether there was a difference between 
requiring Muslims to register “and Jews having to 
register in Nazi Germany,” he responded, “You tell 
me,” rather than denouncing any registration program 
with similarities to what happened to Jews during the 
Holocaust. 109

The culmination of President Trump’s claims 
regarding Muslims’ purported threat to American 
security was his demand for an outright ban on 
Muslims entering the United States. In a December 
2015 press release, he “call[ed] for a total and complete 
shutdown of Muslims entering the United States until 
our country’s representatives can figure out what is 
going on.”ioi He left no doubt as to the basis for his 
decision; “Until we are able to determine and 
understand this problem and the dangerous threat it 
poses, our country cannot be the victims of horrendous 
attacks by people that believe only in Jihad, and have 
no sense of reason or respect for human life.”i02

Jeremy Diamond, Trump Would “Certainly Implement” 
National Database for U.S. Muslims, CNN.com, (Nov. 20, 2015, 
12:18 PM), http://www.cnn.eom/2015/ll/19/politics/donaid- 
trump-barack-obama-threat-to-country/.
100 'pj.jp Gabriel, Donald Trump Says He’d “Absolutely” Require 
Muslims to Register, N.Y. Times, Nov. 20, 2015, 1:31 AM), 
https://www.nytimes.eom/politics/first-draft/2015/ll/20/donald- 
trump-says-hed-absolutely-require-muslims-to-register/.

Jeremy Diamond, Donald Trump: Ban all Muslim Travel to 
U.S., CNN.com (Dec. 8, 2015, updated 4:18 AM),
http://www.cnn.eom/2015/12/07/politics/donald-trump-muslim- 
ban-immigration/index.html.

Jessica Estepa, ‘Preventing Muslim immigration’ statement 
disappears from Trump’s campaign site, USA Today (May 9, 
2017, 6:03 AM), https://www.usatoday.com/story/news/politics/ 
onpohtics/2017/05/08/preventing-muslim-immigration- 
statement-disappears-donald-trump-campaign-site/101436780/.

http://www.cnn.eom/2015/ll/19/politics/donaid-trump-barack-obama-threat-to-country/
http://www.cnn.eom/2015/ll/19/politics/donaid-trump-barack-obama-threat-to-country/
https://www.nytimes.eom/politics/first-draft/2015/ll/20/donald-trump-says-hed-absolutely-require-muslims-to-register/
https://www.nytimes.eom/politics/first-draft/2015/ll/20/donald-trump-says-hed-absolutely-require-muslims-to-register/
http://www.cnn.eom/2015/12/07/politics/donald-trump-muslim-ban-immigration/index.html
http://www.cnn.eom/2015/12/07/politics/donald-trump-muslim-ban-immigration/index.html
https://www.usatoday.com/story/news/politics/


28
These blatantly discriminatory statements 

continued after Mr. Trump was sworn into office as 
President. On social media and in interviews, he has 
referred to his own Executive Order as a “Ban.”i03 For 
this reason, the President’s modifications to the 
specific parameters of the Executive Order must be 
seen as a transparent effort to minimize judicial 
scrutiny. There can be no doubt that the origin for— 
and motivation behind—the ban remains the same: to 
prevent entry of Muslim people as a group due to the 
false and pernicious stereotype that they are more 
likely to commit violence within the United States’
borders.

Although the Government now invokes national 
security as a purported justification for the order (just 
as it did in Korematsu), Respondents have 
demonstrated that this justification is entirely 
pretextual. Indeed, given the extensive screening of 
immigrants already in place, it is not surprising that 
the U.S. Department of Homeland Security (“DHS”) 
explicitly rejected the need for the Executive Order. In 
a memo that DHS prepared for the Trump 
Administration, entitled “Citizenship Likely an 
Unreliable Indicator of Terrorist Threat to the United 
States,” it concluded that “country of citizenship is 
unlikely to be a reliable indicator of potential terrorist

Donald J. Trump (@realDonaldTrump), Twitter (Sept. 15, 
2017, 3:54 AM), https://twitter.com/realDonaldTrump/status/ 
908645126146265090.

Amy B. Wang, Trump Asked for a “Muslim Ban,” Giuliani 
Says—and Ordered a Commission To Do It “Legally,"Wash. Post 
(Jan. 29, 2017), https://www.washingtonpost.com/news/the-
fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says- 
and-ordered-a-commission-to-do-it-legally/.

https://twitter.com/realDonaldTrump/status/
https://www.washingtonpost.com/news/the-


29
a c t i v i t y T h e  absence of a legitimate justification 
necessitating the broad terms of the Executive Order, 
and the Order’s ineffectiveness in achieving its stated 
national security goals, confirms that the Order’s true 
purpose is to impose an immigration ban on Muslims 
based on an entrenched, yet patently false, stereotype 
that they are inherently dangerous.

B. The Order, if Approved, Would 
Contribute to Increasing Animosity and 
Violence To^vards Innocent Muslim- 
Americans.

This Court must make clear, in unequivocal terms, 
that religious discrimination emanating from a false 
and pernicious stereotype of Muslims as a group will 
not be tolerated under the United States Constitution. 
This is especially crucial when, as here, that 
discrimination comes from the Executive Branch of 
our federal government. Allowing the Executive Order 
to have this Court’s constitutional stamp of approval 
would legitimize those stereotypes and lead to the 
same broader harms to Muslims that similar 
stereotypes have caused other minorities in the past.

State and local entities have already attempted to 
enact legislation targeting Muslims. In October 2010, 
Oklahoma approved a constitutional amendment 
responding to the unjustified concern that “sharia”— 
Islamic jurisprudence—poses a threat to the American

Memorandum from U.S. Dep’t of Homeland Sec., Citizenship 
Likely an Unreliable Indicator of Terrorist Threat in the United 
States at 1, as reported by Rick Jervis, DHS Memo Contradicts 
Threats Cited by Trump’s Travel Ban, U.S.A. Today (Feb. 25, 
2017, 3:36 PM), http://www.usatoday.com/story/news/2017/02/24/ 
dhs-memo-contradict-travel-ban-trump/98374184/.

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30
judicial system The author of the bill,
Representative Rex Duncan, proclaimed that “sharia” 
was a “cancer” and that his bill would “act as a pre­
emptive strike against sharia law” coming to 
Oklahomad®'^ According to Representative Duncan, 
Muslims come to America to take away “liberties and 
freedom from our children . . . .  This is a war for the 
survival of America. It’s a cultural war.” °̂® At least 
seven other states have considered similar
legislation. 109

There has been a similarly disturbing increase in 
opposition to the opening of mosques, often based on 
the unsubstantiated belief that they serve as a 
gathering place for violent individuals. For example, 
in 2010, residents of Murfreesboro, Tennessee sued 
Rutherford County for issuing permits allowing for the 
expansion of a local mosque.no The litigants opposed 
the construction of the mosque on the grounds that 
Islamic law supposedly “advocates sexual abuse of 
children, beating and physical abuse of women, death 
edicts, honor killings, killing of homosexuals, outright 
lies to Kafirs, Constitutional free zones, and total

10® Ryan J. Reilly, Oklahoma Anti-Sharia Constitutional 
Amendments Struck Down by Federal Judge, Huffington Post 
(Aug. 16, 2013), http;//www.huffmgtonpost.com/2013/08/15/
oklahoma-sharia-constitution_n_3764313.html.
107 Id.
108 James C. McKinley, Jr., Oklahoma Surprise: Islam as an 
Election Issue, N.Y. Times, Nov. 15, 2010, at A12 (quoting State 
Representative Rex Duncan).
109 Donna Leinwand, More States Enter Debate on Sharia Law, 
USA Today (Dec. 9, 2010, 10:29 AM), http://usatoday30. 
usatoday.eom/news/nation/2010-12-09-shariaban09_ST_N.htm.
110 Sahar F. Aziz, From the Oppressed to the Terrorist: Muslim- 
American Women in the Crosshairs of Intersectionality, 9 
Hastings Race & Poverty L.J. 191, 210 (2012).

http://www.huffmgtonpost.com/2013/08/15/
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31
world dominion.’’̂  A federal court ultimately ordered 
Rutherford County to grant the Islamic Center’s 
request for a permit, nullifying a state court decision 
in favor of the plaintiffs More recently, the city 
council in Bayonne, New Jersey rejected a request for 
a permit to build a mosqued^^ One of the opponents 
said Muslims “are trying to take over the block and the 
neighborhood” and referenced the 1993 World Trade 
Center bombingd^^

Existing mosques in New York, New Jersey, 
Tennessee, Wisconsin, Connecticut, Kentucky, 
California, and Oklahoma have been subject to similar 
threats and accusationsd’̂  ̂ On April 10, 2011, the 
Islamic Center of Springfield, Missouri received a 
threatening letter stating that Muslims “stain the 
earth” and vowing that “Islam will not survive.”ii® The 
letter ended with a drawing of a ram’s head with 
“Death to Islam!” printed below Itdi"̂  Earlier that 
year, the same mosque was vandalized with graffiti 
stating, Wou bash us in Pakistan, we bash you 
here.”ii® The following week, the Islamic Center in 
Cartersville, Georgia had its doors and windows 
shattered with rocks, one of which was painted with 
the words “Muslim murderers.”^̂®

111 Id.
112 United States v. Rutherford County, No. 12 Civ. 0737, 2012 WL 
2930076 (M.D. Tenn. July 18, 2012).
113 Sharon Otterman, Mosque Is Blocked in New Jersey, but 
Dispute Is Far from Over, N.Y. Times (Mar. 10, 2017), 
https://www.nytimes.eom/2017/03/10/nyregion/mosque-bayonne- 
new-jersey.html.
114 Id.
11® Aziz, supra note 110, at 210-11.
116/d. at 211.
117 Id.
118 Id.
119 Id.

https://www.nytimes.eom/2017/03/10/nyregion/mosque-bayonne-new-jersey.html
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32
The notion that Muslims are inherently violent is a 

myth. But, the violence against Muslims resulting 
from that stereotype is all too real.

CONCLUSION
For the foregoing reasons, the Court should affirm 

the decisions of the Fourth and Ninth Circuits.

Respectfully Submitted,

Sherrilyn a . Ifill 
Director-Counsel 

Janai S. N elson 
Samuel Spital 
Jin  Hee Lee
NAACP Legal D efense & 

Educational Fund , Inc . 
40 Rector Street, 5th Floor 
New York, NY 10006 
(212) 965-2200

September 18, 2017

Ajmel Quereshi 
Counsel of Record 

Christopher Kemmitt 
NAACP Legal Defense & 

Educational Fu nd , Inc . 
1444 I Street NW 
Washington, DC 20005 
(202) 682-1300

aquereshi@naacpldf.org

mailto:aquereshi@naacpldf.org


*h '  ;

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