Alston Hunt Floyd & Ing serves as Hawai`i local counsel for four sets of organizations which filed amicus curiae briefs in the State of Hawai`i’ and Dr. Ismail Elshikh’s lawsuit challenging the Trump administration’s Executive Order 13780 (March 6, 2017), “Protecting the Nation from Foreign Terrorist Entry into the United States”, replacing Executive Order 13769 (January 27, 2017), of the same title. The case is currently on appeal to the Ninth Circuit Court of Appeals, which held its hearing on May 15th at 9:30 AM Pacific time.
AHFI’s amicus curiae clients are:
(1) The Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Karen Korematsu, Holly Yasui (the children of litigants in the Japanese relocation and incarceration cases from World War II), and various civil rights organizations and minority bar associations: 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 Honolulu, LatinoJustice PRLDEF, Inc., the National Bar Association, and the South Asian Bar Association of North America (SABA North America)
(2) Muslim Advocates, American Muslim Health Professionals, Muppies, Inc., The National Arab American Medical Association and Network of Arab-American Professionals
(3) National Asian Pacific American Bar Association and
(4) New York University
On April 21, 2017, the Korematsu Center group filed a Ninth Circuit amicus brief in the appeal of U.S. District Judge Derek Watson’s preliminary injunction order. Judge Watson ruled that the challengers had met their burden of establishing a strong likelihood of success on the merits that the Executive Order violates the First Amendment, that they would suffer irreparable injury if the restraining order was not granted, and that the balance of equities and public interest was in their favor.
On appeal, 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 and that the plaintiffs’ claims are not justiciable.
In their amicus brief, the Korematsu Center group asserts 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 the Korematsu Center group argues that 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.
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