Case 3:17-cv-00451 Document 1 Filed 01/28/17 Page 1 of 7

East Bay Law
Andrew W. Shalaby sbn 206841
2 1417 Solano Avenue
Albany, CA 94706
3 Tel. 510-551-8500
Fax: 510-725-4950
4 email: andrew@eastbaylaw.com
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Attorneys for Plaintiffs
The People of the State of California, and
7 The People of the United States of America
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IN THE UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO

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People of the United States of
America and the State of California,
Plaintiffs,

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vs.
Donald Trump; United States of
America,
Defendants.

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Case Number: 3:17-cv-451
(Fee Exempt: 28 U.S.C. § 1914(b), by
Judicial Conference effective 12/2016)
COMPLAINT FOR INJUNCTION
AND REPEAL OF PRESIDENTIAL
EXECUTIVE ORDER DATED
JANUARY 27, 2017 SUSPENDING
VISAS AND IMMIGRATION
BENEFITS WITHOUT
CONGRESSIONAL APPROVAL
U.S. Const. art. I, § 1;
U.S. Const. art. II, § 1, cl. 1

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I. FEE EXEMPTION
This action is brought on behalf of the People of the State of California and
United States, and exempted from filing fees under 28 U.S.C. § 1914(b):
Effective on: December 1, 2016

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Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration
Benefits Without Congressional Approval
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The United States should not be charged fees under this schedule, with
the exception of those specifically prescribed in Items 2, 4 and 5, when
the information requested is available through remote electronic access.
Reference:

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http://www.uscourts.gov/services-forms/fees/district-court-miscellane
ous-fee-schedule

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I. JURISDICTION

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This action arises under the Constitution, laws, or treaties of the United States,
conferring Federal Question jurisdiction under 28 U.S.C. § 1331.

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VENUE
Defendant is the United States. Venue is proper in any judicial district pursuant
to 28 U.S.C. § 1391(e).

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PARTIES
1.

Plaintiffs are the People of the United States of America and the State of

California, by way of the Private Attorney General statutes of the State of California
and United States, for this civil action. The action is for the protection of all persons
in the United States in their civil rights and for their vindication pursuant to brought
pursuant to 42 U.S.C. § 1988.
2.

Defendant, Donald Trump, aka Donald John Trump (“Mr. Trump”), is

the forty fifth president of the united states, inaugurated eight days ago, on January
20, 2017. He is named as an indispensable party with regard to this action to enjoin
enforcement of his executive order issued one day before the filing of this action, on
January 27, 2017, purporting to suspend visas and immigration benefits of a
seemingly undefined class of persons, apparently based on ethnicity and/or religious
beliefs.
3.

Defendant, the United States of America, is the United States

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Benefits Without Congressional Approval
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Government, generally, and is named as a defendant for the purpose of enjoining

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enforcement of the Executive Order of Mr. Trump.
FIRST CAUSE OF ACTION FOR INUNCTION OF
EXECUTIVE ORDER DATED JANUARY 27, 2017

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4.

On January 27, 2017, one day before the filing of this Complaint, Mr.

Trump signed an executive order purporting to suspend visas and immigration
benefits of a seemingly undefined class of persons, apparently based on ethnicity
and/or religious beliefs. The order is captioned:

“EXECUTIVE ORDER
PROTECTING THE NATION FROM FOREIGN TERRORIST
ENTRY INTO THE UNITED STATES”
10 A copy of the Executive Order is attached as Exhibit A hereto.
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5.

The Executive Order purports to suspend the issuance of visas and

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benefits, with it’s stated goal being the prevention of entry of citizens and/or residents

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of largely unspecified countries, and appears to erroneously reference a statute which

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does not appear to exist: “section 217(a)(12) of the INA.” While there is a “section
217,” there does not appear to be a section “217(a)(12)” identifying the countries from
which “immigrant and nonimmigrant” persons are to be denied entry to the United
States:

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I hereby proclaim that the immigrant and nonimmigrant entry into the
United States of aliens from countries referred to in section 217(a)(12)
of the INA, 8 U.Ss.C. 1187(a)(12), would be detrimental to the interests
of the United States, and I hereby suspend entry into the United States,
as immigrants and nonimmigrants, of such persons for 90 days from the
date of this order...”

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The People are not able to readily identify which countries the President intended

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because there does not appear to be a “section 217(a)(12),” and therefore does not

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appear to be any publication defining the “countries referred” in “section 217(a)(12).

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6.

The Executive Order violates the separation of powers doctrine without

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statutory exception, because U.S. Const. art. I, § 1 vests Congress with all legislative

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powers:

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Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration
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U.S. Const. art. I, § 1

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All legislative Powers herein granted shall be vested in a Congress of the
United States, which shall consist of a Senate and House of
Representatives.

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The President is vested with the executive power pursuant to U.S. Const. art. II, § 1,

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cl. 1:

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Section 1. The executive Power shall be vested in a President of the United
States of America.
The Judiciary, this Court, is vested with the judicial powers to interpret the laws
pursuant to is vested with U.S. Const. art. III, § 1:
Section 1. The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation, which
shall not be diminished during their Continuance in Office.
No Statutory Exception Exists
There has been no change of any kind so as to warrant departure from the
Separation of Powers doctrine and permit Mr. Trump to legislate the Executive Order
at issue. There has been on increase of threat of terrorist attacks at all since the event
referenced in the second paragraph of Mr. Trump’s Executive Order, the “terrorist
attacks of September 11, 2001.” To the contrary, the threat of terrorist attacks has
declined steadily since September 2001, therefore Congress and the previous two
presidential administrations never considered enacting such a prohibition of entry of
persons to the United States based on their countries of origin and/or religious beliefs.
There is no exigent circumstance exception to warrant an executive order, while the
legislature and previous two presidents served through the several years following
September 11, 2001 and had years to enact legislation barring entry into the United
States by the classes of persons identified on Mr. Trump’s Executive Order, but
clearly determined such legislation would be detrimental to the interests of the People
of the United States of America.
Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration
Benefits Without Congressional Approval
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THE EXECUTIVE ORDER WOULD DAMAGE U.S. REPUTATION

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Mr. Trump’s intent is commendable and appreciated insofar as he identifies

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persons who inflict “gender-based violence against women, including honor killings,”

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as well as persons “who have been radicalized after entry into the United States and

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engaged in terrorism-related acts, or who have provided material support to terrorism-

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related organizations in countries that pose a threat to the United States.” However,

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Mr. Trump’s Executive Order is overly broad and misses it’s mark. If not stricken,

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the Executive Order would facially damage the reputation of the United States

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worldwide, because it discriminates against a very large class of persons based on

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either their foreign citizenship or residency, or religious beliefs, based on an erroneous

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beliefs of one individual (Mr. Trump). While the several countries Mr. Trump

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attempted to identify on his Executive Order are not actually specified, and apparently

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cannot even be ascertained from the document or it’s references, nevertheless a ban
on entry to the United States based solely on foreign citizenship or residency, or
religion, facially evidences inhumane discrimination.

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CONGRESS MAY ENACT THE LEGISLATION IF NECESSARY
The Legislative branch is charged with enactment of the laws. Mr. Trump can
therefore tender his Executive Order as a bill to Congress, so that the legislature can
decide whether such a law should be enacted for the benefit of the People of the
United States of America. However, no statute or authority exists to support the
issuance of this particular Executive Order.
SECOND CAUSE OF ACTION TO STRIKE EXECUTIVE
ORDER AS UNCONSTITUTIONAL INFRINGEMENT ON
ESTABLISHMENT CLAUSE
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The First Amendment to the United States Constitution is the cornerstone

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of democracy. The first sentence of the First Amendment provides:

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“Congress shall make no law respecting an establishment of religion...”

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Mr. Trump’s Executive Order presents a proposed “law” facially prohibiting entry of

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persons to the United States based on their adherence to religious beliefs shared in

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certain countries. The Executive Order therefore is facially unconstitutional and must

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be stricken as an infringement on the Establishment Clause of the First Amendment.

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INJUNCTIVE RELIEF PENDING ADJUDICATION

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Plaintiffs respectfully move for an immediate injunction of enforcement of Mr.
Trump’s Executive Order until it’s validity and constitutionality is adjudicated.

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Dated: January 28, 2017

s/Andrew W. Shalaby
Andrew W. Shalaby, Attorney for
Plaintiffs

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Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration
Benefits Without Congressional Approval
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PROOF OF SERVICE
I, Andrew W. Shalaby, declare as follows:

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I am a citizen of the United States, over the age of eighteen years and not a
4 party to the within entitled action. I am employed at 7525 Leviston Ave, El
5 Cerrito, CA. On January 28, 2017 I served the attached:
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COMPLAINT FOR INJUNCTION AND REPEAL OF
PRESIDENTIAL EXECUTIVE ORDER DATED
JANUARY 27, 2017 SUSPENDING VISAS AND
IMMIGRATION BENEFITS WITHOUT
CONGRESSIONAL APPROVAL
on the interested parties in said action, by placing a true copy thereof in sealed
envelope(s) addressed as follows:
Office of the Attorney General
455 Golden Gate, Suite 11000
San Francisco, CA 94102-7004
and served the named document in the manner indicated below:

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BY MAIL: I am familiar with the practices of the U.S. Postal Service, and I
14 caused true and correct copies of the above documents, by following ordinary
business practices, to be placed and sealed in envelopes(s) addressed to the
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addressees, at an office of the U.S. Postal Service in El Cerrito, California, for
16 collection and mailing by first class mail with the United States Postal Service.
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I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct. Executed January 28, 2017, at El Cerrito,
19 California.
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s/Andrew W. Shalaby

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Andrew W. Shalaby

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Complaint For Injunction of Executive Order Dated 1/27/17 Suspending Visas and Immigration
Benefits Without Congressional Approval
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No. 3:17-cv-451