LatinoJustice joins Korematsu Center in filing District of Hawai`i amicus brief in State of Hawai`i and Ismail Elshikh v. Trump et al.


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NEW YORK – LatinoJustice joined the Fred T. Korematsu Center for Law and Equality (Korematsu Center), the children of litigants in the Japanese relocation and incarceration cases from World War II, civil rights organizations, and national bar associations of color in filing an amicus brief on March 10, 2017 in State of Hawai`i and Ismail Elshikh v. Trump et al., pending in the U.S. District Court for the District of Hawai`i. The brief supports a legal challenge to the Trump administration’s Executive Order 13780 (March 6, 2017), entitled “Protecting the Nation from Foreign Terrorist Entry into the United States”, which replaces Executive Order 13769 (January 27, 2017), of the same title.

The challengers allege that the Executive Order violates the First and Fifth Amendments, the Immigration and Nationality Act, the Religious Freedom and Restoration Act, and the Administrative Procedure Act. The federal government argues that the court should defer wholly to the executive branch because the Executive Order concerns immigration and courts have historically deferred to the executive branch on immigration issues.

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power doctrine”—arguably conferring a blank check to the executive branch—is based on a string of overtly racist and outdated cases.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

With respect to the filing, Professor Robert S. Chang, executive director of the Korematsu Center, stated that “It is so heartening to see these civil rights organizations and the bar associations of color, representing hundreds of thousands of lawyers, come together to stand with Jay Hirabayashi, Holly Yasui, and Karen Korematsu to support the communities and individuals most harmed by this executive order.”

“The President’s first Executive Order travel ban, also known as the ‘Muslim Ban,’ faced a number of legal challenges in the courts because of egregious constitutional violations which resulted in that initial Executive Order being enjoined. On March 6th the President announced a revised version of the travel ban that continues to target certain individuals based upon race and religion and suffers from the same constitutional infirmities. We join today with our fellow legal partners in the civil rights community to reiterate, as we did with the first travel ban, that a civil rights violation of one person is a civil rights violation for all of us,” said Juan Cartagena, President and General Counsel at LatinoJustice PRLDEF.

Oral arguments in the State of Hawai`i case took place at 9:30am Hawai`i time on March 15, 2017.

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

Hawai`i counsel includes Louise Ing and Claire Wong Black of Alston Hunt Floyd & Ing, as well as Eric Yamamoto of the University of Hawai`i Mānoa William S. Richardson School of Law. Attorneys from Akin Gump Strauss Hauer & Feld LLP, including Pratik Shah, co-head of Akin Gump’s Supreme Court and Appellate practice, New York litigation partner Robert Johnson, and Los Angeles litigation senior counsel Jessica Weisel serve as pro bono counsel on the brief. Stated Mr. Shah, “Our brief strives to provide historical context—known all too well to the Korematsu Center and other amici—to ensure that the Court does not rubber stamp the Government’s invocation of national security when it comes to the profoundly important questions at issue.”

The amicus brief is available here.

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