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DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: (808) 586-1500
Fax: (808) 586-1239
Attorneys for Plaintiff, State of Hawai‘i

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NEAL K. KATYAL*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: (202) 637-5600
Fax: (202) 637-5910
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

(See Next Page For Additional Counsel)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I

STATE OF HAWAI‘I and ISMAIL ELSHIKH,
Plaintiffs,

v.

Civil Action No. 1:17-cv-00050DKW-KSC

DONALD J. TRUMP, in his official capacity as
President of the United States; U.S.
DEPARTMENT OF HOMELAND
SECURITY; JOHN F. KELLY, in his official
capacity as Secretary of Homeland Security;
U.S. DEPARTMENT OF STATE; REX
TILLERSON, in his official capacity as
Secretary of State; and the UNITED STATES
OF AMERICA,
Defendants.

OPPOSITION TO MOTION
FOR CLARIFICATION OF
TRO

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ADDITIONAL COUNSEL
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
425 Queen Street
Honolulu, HI 96813
Telephone: (808) 586-1500
Fax: (808) 586-1239
Email: deirdre.marie-iha@hawaii.gov
Attorneys for Plaintiff, State of Hawai‘i

COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
HOGAN LOVELLS US LLP
555 Thirteenth Street NW
Washington, DC 20004
Telephone: (202) 637-5600
Fax: (202) 637-5910
Email:
neal.katyal@hoganlovells.com
THOMAS P. SCHMIDT*
HOGAN LOVELLS US LLP
875 Third Avenue
New York, NY 10022
Telephone: (212) 918-3000
Fax: (212) 918-3100
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
1835 Market St., 29th Floor
Philadelphia, PA 19103
Telephone: (267) 675-4600
Fax: (267) 675-4601
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh

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INTRODUCTION
After full briefing and a lengthy hearing, this Court granted a temporary
restraining order enjoining Defendants “from enforcing or implementing Sections
2 and 6 of the Executive Order.” (Dkt. 219 at 2, 42). Defendants now ask this
Court to “clarify” that the injunction does not cover any of Section 6 and most of
Section 2. Because this Court has already held that Plaintiffs have met their
burden to justify a temporary restraining order with respect to Sections 2 and 6 as a
whole—and because Defendants’ motion is substantively lacking—this request
should be rejected. Plaintiffs respectfully request that this Court either enter a
preliminary injunction reflecting the full scope of the temporary restraining order
that is now in place, or set an expedited briefing schedule on the question whether
such an order should be entered.1

1 As Defendants acknowledged in their motion, Mem. at 2 (Dkt. 227-1), the
Government has declined Plaintiffs’ efforts to agree to a briefing schedule
regarding whether the Court should extend the TRO. They have elected instead to
wait until the Court decides this motion, id. Because this briefing schedule is
required by the Court's order, Op. at 43 (Dkt. 219), Plaintiffs have deferred
entering a formal motion to convert the TRO into a preliminary injunction.
Plaintiffs wish to make clear, however, that they do not believe further briefing is
necessary at this point, particularly in light of the merits briefing Defendants have
submitted in connection with this motion. Plaintiffs would therefore welcome a
decision from the Court converting the TRO to a preliminary injunction without
further briefing or proceedings, if the Court believes that is appropriate.
Alternately, if the Court believes additional briefing is necessary, Plaintiffs would
welcome an expedited briefing schedule from the Court.
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BACKGROUND
On March 8, 2017, Plaintiffs the State of Hawaii and Dr. Ismail Elshikh filed
a Second Amended Complaint and Motion for Temporary Restraining Order in this
case. In no uncertain terms, the Motion “ask[ed] that the Court enter a temporary
restraining order enjoining Defendants from enforcing or implementing Sections 2
and 6 of the Executive Order nationwide.” (Dkt. 65 at 4). In the brief
accompanying that motion, Plaintiffs asked the Court to “enter a nationwide
injunction prohibiting the enforcement of sections 2 and 6.” (Dkt. 65-1 at 59).
The brief explained that “[b]oth of these sections are unlawful in all of their
applications because,” among other reasons, they are “motivated by anti-Muslim
animus.” (Dkt. 65-1 at 46) (emphasis added). Plaintiffs also explained that “the
Executive Order will irreparably harm Hawaii’s sovereign interest in preventing
the unconstitutional ‘establishment’ of religion in the state” and that it would harm
Dr. Elshikh by “infring[ing]” on “his rights to be free from governmental
discrimination based on religion.” (Dkt. 65-1 at 50). And in the draft Order filed
with the Court, Plaintiffs asked that Defendants be “enjoined fully from enforcing
or implementing Sections 2 and 6 of the Executive Order.” (Dkt. 65-3 at 4)
(emphasis added).
In its lengthy response, the Government attempted to defend both Section 2
and Section 6 of the Order. (See, e.g., Dkt. 145 at 5, 11, 19, 37 n. 10). It devoted

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an entire separate paragraph of its statutory background section to the refugee
program (Dkt. 145 at 5), and it gave Section 6 the same attention that it gave
Section 2 by separate heading in describing the revised Executive Order (Dkt. 145
at 11). It also dealt with the suspension of refugees in its argument section.
Notably, with respect to the Establishment Clause, Defendants argued that “the
operation of both suspensions”—that is, both the six country entry suspension and
the refugee suspension— “confirms the Order’s stated purpose.” (Dkt. 145 at 41).
Indeed, the Government referred expressly to the fact that the Order “temporarily
suspends the Refugee Program globally” as purported evidence that the Order was
not motivated by religious animus. (Dkt. 145 at 45).
In its irreparable harm section, the Government did not dispute that the
Establishment Clause inflicts harms that are necessarily irreparable. But that was
not because it somehow believed Section 6 was not covered by Plaintiffs’ request
for injunctive relief. To the contrary, the Government argued that “at a minimum,
Hawaii has not demonstrated immediate threatened injury from the short,
temporary suspensions of entry and the Refugee Program.” (Dkt. 145 at 48)
(emphasis added).
The Government also argued that this Court should limit any injunctive
relief to “address at most [Dr. Elshikh’s] mother-in-law’s ability to enter the
country” and “particular individuals with whom [Hawaii] shows it has a close

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existing relationship.” (Dkt. 145 at 53). The Government pointedly did not
suggest that the Court could or should parse Sections 2 and 6 if it determined that a
wider form of injunctive relief was appropriate. In fact, the Government quoted
the Ninth Circuit’s holding that the “Executive was ‘far better equipped’ to revise”
the Executive Order. (Dkt. 145 at 54).
This Court rejected the Government’s arguments with respect to the
Establishment Clause, the harm inflicted by the Order, and the necessary scope of
the injunction. Accordingly, on March 15, 2017, the Court entered a Temporary
Restraining Order that applied to both Sections 2 and 6 of the Order without
qualification. (Dkt. 219 at 2, 42).
When the Court issued its opinion, it also directed the parties to agree on a
briefing schedule to determine whether the TRO should be extended. Instead, and
over Plaintiffs’ objections, the Government brought a motion asking the Court to
“clarify” that the TRO enjoining Sections 2 and 6 applies only to Section 2(c).
Mem. at 2 (Dkt. 227-1). Plaintiffs oppose that motion and welcome any steps this
Court may wish to take to expedite the proceedings to accommodate the urgency
the Government has previously expressed, see n. 1, supra.
ARGUMENT
The Government’s motion is predicated on a series of mischaracterizations.
Chief among them is its erroneous assertion that its motion—which asks the Court

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to substantively alter the scope of the relief it ordered just three days ago—is
merely a motion to “clarify” the existing TRO. A motion requesting such dramatic
relief in the absence of changed circumstances is wholly procedurally improper
and the previously raised and waived arguments Defendants attempt to advance in
support of its motion are not properly before the Court.
But procedure is only half of the Government’s problem; there is also no
merit to its assertions that the injunction—whether viewed as a TRO or
preliminary injunction—should be narrowed to cover Section 2(c) alone. This
Court’s well-reasoned opinion and Supreme Court precedent hold the opposite.
Further, the provisions in Section 2 and in Section 6 are intertwined and do not
readily admit to parsing, and Plaintiffs have already presented an ample factual and
legal basis for an injunction of both Sections in full. Plaintiffs therefore
respectfully request that the motion be denied, and respectfully suggest that this
Court consider whether further briefing on the merits of its injunction are
necessary at this time.
1. The Government’s Motion for “Clarification” Contains Several
Misrepresentations.
As a preliminary matter, the Government’s motion contains several errors
that must be corrected. First, the Government asserts that it is seeking
“clarification” of the existing TRO, but then requests that the Court radically alter
the Order by cutting its scope in half and then carving away at the remainder. That

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plainly is not a “clarification.” In fact, the Government is improperly seeking to
modify the existing TRO based on arguments it has already raised or waived.
Second, the Government repeatedly mischaracterizes Plaintiffs’ prior claims
with respect to both standing and the merits. As to standing, the Government
asserts that Plaintiffs’ “claims of harm principally relate to Section 2(c).” Mem. at
5-6 (Dkt. 227-1). It then entirely ignores numerous references in Plaintiffs’ TRO
briefing to the Establishment Clause harms inflicted by the Order on both Hawaii
and Dr. Elshikh. Perhaps most egregiously, the Government claims that Dr.
Elshikh “asserts that he will be harmed by the application of Section 2(c), which he
claims will preclude his mother-in-law from entering the United States.” Id. at 6
n.3. This Court already told the Government that this contention “is not true. Dr.
Elshikh alleges direct, concrete injuries to both himself and his immediate family
that are independent of his mother-in-law’s visa status. These alleged injuries have
already occurred and will continue to occur once the Executive Order is
implemented and enforced—the injuries are not contingent ones.” Op. at 26-27
(Dkt. 219) (emphasis added).
As to the merits, the Government’s contentions are, if anything, less
accurate. It suggests that Plaintiffs addressed Section 6 only twice in their TRO
briefing of the constitutional arguments. That is just wrong. Plaintiffs’ motion for
a TRO addressed and quoted the Ninth Circuit’s holding regarding the Due Process

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rights of refugees. (Dkt. 65-1 at 23, 38). Plaintiffs did not say more because they
did not need to. As they pointed out in reply after the Government attempted to
sweep the refugee issue under the rug (Dkt. 145 at 37 n.10), the Ninth Circuit had
already held that refugees have viable Due Process claims and had already upheld
a TRO obtained by States vindicating those rights. (Dkt. 191-1 at 14-15 (quoting
Washington, et al. v. Trump et al., 847 F.3d 1151, 1166 (9th Cir. 2017))). More to
the point, Plaintiffs stated outright that their Establishment Clause arguments
applied to both Sections 2 and 6; “[b]oth of these sections are unlawful in all of
their applications” because they are “motivated by anti-Muslim animus.” (Dkt. 651 at 46). And Plaintiffs specifically cited the President’s statement regarding
refugees as evidence of the animus. (Dkt. 65-1 at 43). There was no ambiguity as
to the scope of Plaintiffs’ Establishment Clause claims.
Finally, and perhaps most troublingly, the Government’s motion
misrepresents this Court’s opinion. The Government suggests that the harms the
Court identified could not establish Article III standing with respect to a challenge
to Section 6, ignoring the fact that this Court’s standing holding with respect to
Hawaii was expressly premised on the Ninth Circuit’s holding in Washington v.
Trump. Op. at 19-20 (Dkt. 219). The Washington opinion upheld States’ standing
to seek an injunction of a comparable refugee ban. See, e.g., 847 F.3d at 1168.

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Further, the Government entirely ignores four pages of the Court’s opinion
discussing Dr. Elshikh’s standing to assert “an Establishment Clause violation.”
Op. at 23 (Dkt. 219). That analysis was in no way limited to section 2(c) of the
Order; on the contrary, it expressly held that Dr. Elshikh had standing to challenge
“portions of the Executive Order”—plural—based on the fact that the Order as a
whole “‘sends a message to [Muslims] that they are outsiders’” and makes it
difficult for Dr. Elshikh “and members of the Mosque [to] associate as freely with
those of other faiths.” Op. at 24-25 (Dkt. 219) (quoting Catholic League for
Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1048 (9th
Cir. 2010) (en banc)).
On the merits, the Government wrongly claims that the Court “focused its
Establishment Clause analysis on the suspension of entry provisions contained in
Section 2(c) of the Executive Order.” Mem. at 7 (Dkt. 227-1). In fact, the Court
explicitly noted—and accepted—Plaintiffs’ claim that “the Executive Order causes
harm by stigmatizing not only immigrants and refugees, but also Muslim citizens
of the United States.” Op. at 10 (Dkt. 219) (emphasis added). As evidence that the
Executive Order’s primary purpose was to effectuate a Muslim ban, the Court
quoted numerous statements making no distinction whatever between the
Executive Order’s nationality-based ban and its shutdown of refugee admissions.
See id. at 33-36 & n.14; see also id. at 11 (quoting Second Am. Compl. ¶ 58, n.29,

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referring to interview during which the President (falsely) claimed that it was
easier for Muslims than Christians to enter the United States as refugees, and
objected that this was “very, very unfair”). Furthermore, in identifying several
assertions that “certainly call the motivations behind the Executive Order into
greater question,” the Court quoted the Order’s claim that “‘two Iraqi nationals
admitted to the United States as refugees in 2009’” were convicted of “‘terrorismrelated offenses.’” Op. at 36-37 (Dkt. 219) (emphasis added). In the face of these
references and the Court’s explicit statement that the TRO covers Section 2 and
Section 6, the Government’s reading of the Court’s opinion as limited to Section
2(c) is hard to understand.
2. The Government’s Motion Is Procedurally Improper.
The Government’s misdesignation of its motion as a request for clarification
is not a mere problem of nomenclature. The Government is, in effect, asking the
Court to modify its existing injunction based on a proposed limitation that it could
have—but did not—previously seek, and on the basis of arguments this Court has
already rejected. The procedural defects are obvious.
As the Ninth Circuit has held, “[a] party seeking modification or dissolution
of an injunction bears the burden of establishing that a significant change in facts
or law warrants revision or dissolution of the injunction.” Sharp v. Weston, 233
F.3d 1166, 1170 (9th Cir. 2000); see U.S. ex rel. F.T.C. v. Bus. Recovery Servs.

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LLC, 488 F. App’x 188, 189 (9th Cir. 2012). That standard, embodied in Federal
Rule of Civil Procedure 60(b), applies with respect to TROs. In fact, some courts
have held that because a TRO is not a final order, the ability to alter or to seek
reconsideration is even more limited as it is rooted solely in the court’s inherent
powers. Lucero v. Cash, No. CV 10-3829-CAS OP, 2012 WL 1688543, at *1
(C.D. Cal. May 14, 2012); see also Saini v. I.N.S., 64 F. Supp. 2d 923, 925 (D.
Ariz. 1999) (holding that non-final orders may be reviewed only through resort to a
court’s limited inherent power); Prudential Real Estate Affiliates, Inc. v. PPR
Realty, Inc., 204 F.3d 867, 880 (9th Cir. 2000) (preliminary injunction cannot be
reviewed through Rule 60(b)).
The Government cannot possibly meet that standard. The Government
obviously cannot point to any changed factual circumstances since Wednesday.
Nor has the law changed in the last three days. The Government is simply
dissatisfied with the scope of this Court’s holding, but the Government is not
entitled to relitigate the TRO immediately after it was issued, and certainly cannot
do so in the guise of a “motion for clarification.”
3. The Government’s Motion Fails on the Merits.
Even if the Court examined the merits, the Government’s request to narrow
the injunction would fail. As Plaintiffs argued and this Court held, the Order as a
whole, and Sections 2 and 6 in particular, embodies a policy motivated by religious

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animus. Allowing any part of one or both of these sections to stand perpetuates the
perception that the Executive may make policy predicated on hostility to a
particular faith and stigmatizes Muslim citizens like Dr. Elshikh. This Court
properly held that such a result is expressly foreclosed by the Establishment
Clause.
The Government’s arguments about the appropriate scope of an
Establishment Clause injunction have also been rejected by the Supreme Court. In
Church of Lukumi Babalu Aye v. City of Hialeh, 508 U.S. 520, 540 (1993), the
Supreme Court held that even when parts of a challenged policy appear welltailored to a secular purpose, they must nonetheless be “invalidated” where it is
clear that the policy as a whole has “as [its] object the suppression of religion.” As
discussed below, that does not mean that every element of Sections 2 and 6 would
be unconstitutional if it were enacted outside the context of a discriminatory ban.
As Justice Kennedy explained in Lukumi, a court “need not decide whether”
apparently neutral policies might “survive constitutional scrutiny if [they] existed
separately.” Id. The Court’s Order merely reflects the commonsense principle that
the enjoined policies certainly cannot withstand that scrutiny as part of a policy
motivated by religious animus.
Declining to enjoin Section 6 and part of Section 2 would also be contrary to
the basic command that the “usual function of [emergency relief] is to preserve the

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status quo ante litem.” Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808
(9th Cir. 1963). That status quo is an immigration system unfettered by the
provisions of Sections 2 and 6.
It would be particularly illogical to enjoin only parts of the ban in this case.
As the Government itself acknowledges, the different components of Sections 2
and 6 are inextricably linked. The Government itself explains that, while “Section
2(c) contains the 90-day suspension-of-entry provision * * * [t]he remainder of
Section 2 sets forth a process by which the President will make an additional
determination about whether any restrictions on entry are necessary for certain
foreign nationals or categories of foreign nationals.” Mem. at 4 (Dkt. 227-1)
(emphasis added). In other words, the remainder of Section 2 is designed to help
the President extend his discriminatory ban on entry to additional countries and for
additional periods of time. Since the Court found a high likelihood that the ban
was motivated by discriminatory animus, Op. at 36 (Dkt. 219), the provisions for
extending that ban are surely infected by the same animus, and inflict the same
Establishment Clause harms.
Likewise, all of the provisions of Section 6 are components of an integrated
process for “suspend[ing]” and “review[ing]” refugee admission rules. Mem. at 5
(Dkt. 227-1). As noted, the Court found a high likelihood that the President was
changing refugee admissions rules to effectuate a Muslim ban. Op. at 36 (Dkt.

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219). Every piece of that integrated process is an outgrowth of the same poisonous
root, and was properly barred.
Further, the factual record Plaintiffs have developed in this case amply
supports this Court’s finding that Plaintiffs are likely to succeed on the merits of
their claim that all of the Order—including its refugee provisions in Section 6—
was motivated by discriminatory animus towards Muslims. As Plaintiffs’
Complaint documented, President Trump’s repeated pledges throughout the
presidential campaign to curb the admission of refugees were integrally interlinked
with his rhetoric about the threat of Muslims. Months before he even came up
with his proposal for “a total and complete shutdown of Muslims entering the
United States” in December 2015, Second Am. Compl. ¶ 38 (Dkt. 64), President
Trump was decrying the admission of Muslim refugees. On July 11, 2015, he
claimed (falsely) that Christian refugees were being prevented from coming to the
United States, while “[i]f you are Islamic * * * it’s hard to believe, you can come in
so easily.” Id. ¶ 36. In September 2015, he referred to the Syrian refugees the
Obama Administration had accepted for 2016 as “a 200,000-man army” that
“could be ISIS,” and vowed, “if I win, they’re going back!” Id. ¶ 37. In July 2016
he said: “[U]nder the Clinton plan, you’d be admitting hundreds of thousands of
refugees from the Middle East with no system to vet them, or to prevent the
radicalization of the children and their children. Not only their children, by the

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way, they’re trying to take over our children and convince them how wonderful
ISIS is and how wonderful Islam is and we don’t know what’s happening.” See id.
¶ 43 n. 19 (linking to July 2016 speech).
As Plaintiffs’ Complaint also demonstrated, President Trump’s first
Executive Order included a refugee provision not only crafted to effectuate his
promise to keep Muslims refugees out of the country—but that was discriminatory
on its face. Section 5 of the January 27 Order suspended the U.S. Refugee
Admissions Program for 120 days, but included a carve-out for refugees who were
“religious minorit[ies]” in their home countries. Id. ¶ 56. Section 5 directed the
Secretaries of State and Homeland Security, after USRAP admissions resumed, to
“prioritize refugee claim made by individuals on the basis of religious-based
persecution, provided that the religion of the individual is a minority religion in the
individual’s country of origin.” Id. ¶ 57. In an interview with the Christian
Broadcasting Network on January 27, 2017, President Trump outright admitted
that the first Order was intended to create a preference for the admission of
Christian refugees. Id. ¶ 58.
The new Executive Order attempts to sanitize the prior Order’s refugee
provision in order to “be responsive to a lot of very technical issues that were
brought up by the court.” Id. ¶ 74(a). Thus, while the new Order still suspends
URSAP admissions for 120 days under Section 6, it no longer contains an explicit

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carve-out during those 120 days or a mandated preference thereafter for the
admission of Christians. Id. ¶ 81. But these technical fixes do not eliminate the
religious animus that motivated the refugee provisions of the first Order and were
apparent on its face or that motivated the revised one. As President Trump said
himself at a rally after this Court issued its Temporary Restraining Order, the
revised Order is just a “watered down” version of the first Order.2 Removing any
doubt as to whether the taint had been dispelled, President Trump said: “This is a
watered-down version of the first one. This is a watered-down version.” He went
on: “And let me tell you something, I think we ought to go back to the first one.”
Later that night, he also told a television interviewer that it was “very hard” to
assimilate Muslims into Western Culture.3
Accordingly, this Court’s conclusion that Plaintiffs are likely to succeed on
the merits of their Establishment Clause claim is just as true as to Section 6 of the
Order as to Section 2. Given “[t]hese plainly-worded statements, made in the
months leading up to and contemporaneous with the signing of the Executive
Order, and, in many cases, made by the Executive himself”—not only about
Muslim immigration in general but about Muslim refugees specifically—“[a]ny

2 CNBC, March 15, 2017, http://www.cnbc.com/2017/03/15/trump-may-have-justdealt-a-blow-to-his-own-executive-order.html.
3 Washington Post, March 16, 2017, https://www.washingtonpost.com/news/thefix/wp/2017/03/16/donald-trump-explained-twitter-the-universe-and-everythingto-tucker-carlson/?utm_term=.cea6fe975424.
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reasonable objective observer would conclude . . . that the stated secular purpose
of” Section 6 “is, at the very least, ‘secondary to the religious objective’ of
temporarily suspending the entry of Muslims.” Op. at 36 (Dkt. 219) (citation
omitted).
Finally, the notion that the Court’s Order would preclude Executive Branch
consultation or trench on Executive prerogatives is meritless. The Court’s Order
merely prevents Executive branch action under the auspices of an illegal Executive
Order. The Government could engage in appropriate consultations independent of
this Order; it simply cannot do so as part and parcel of effectuating the President’s
promise to implement a Muslim ban. See Lukumi, 508 U.S. at 540.
4. The Court May Consider Entering A Preliminary Injunction Or
Setting An Expedited Briefing Schedule.
By filing this procedurally and substantively improper motion, the
Government has further delayed proceedings in a matter that it has claimed is
urgent. The reasons for such delay elude Plaintiffs. Plaintiffs have repeatedly
offered to cooperate on a condensed or accelerated schedule for addressing a
motion to convert the Court's TRO order into a preliminary injunction. Plaintiffs
have also expressed their belief that there is no need for any further proceedings on
this matter, because the standards for granting both forms of relief are substantially
the same, Stuhlbarg Int'l Sales Co. v. John D. Brush & Co., 240 F.3d 832, 839 n.7
(9th Cir. 2001), and the Ninth Circuit viewed the TRO in Washington v. Trump as

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a preliminary injunction, even though that order was issued with less briefing and
was supported by a less detailed opinion, 847 F.3d at 1157. Indeed, by
immediately appealing the TRO in Washington v. Trump, the Government
indicated its belief that a TRO in that case amounted to a preliminary injunction.
Defendants have resisted Plaintiffs’ offers to accommodate the
Government’s stated view with respect to the exigency of the circumstances. And,
as noted above, the resulting absence of a briefing schedule has led Plaintiffs to
defer entering a formal motion to convert the TRO to a preliminary injunction, see
n. 1, supra. Nevertheless, in the interests of judicial efficiency and to avoid delay,
Plaintiffs would welcome an order from this Court, either taking this opportunity
to clarify that the TRO is effectively a preliminary injunction, or to set an
expedited briefing schedule on this issue.
CONCLUSION
The Government’s motion to narrow the scope of the TRO should be denied.
In Plaintiffs' view, the parties have now fully briefed the issues regarding the scope
of the injunction that should be in place until the Court decides the merits.
Plaintiffs would welcome any further relief this Court sees fit under these
circumstances.
DATED: Washington, D.C., March 18, 2017.

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Respectfully submitted,

/s/ Neal K. Katyal
DOUGLAS S. CHIN (Bar No. 6465)
Attorney General of the State of Hawai‘i
CLYDE J. WADSWORTH (Bar No. 8495)
Solicitor General of the State of Hawai‘i
DEIRDRE MARIE-IHA (Bar No. 7923)
DONNA H. KALAMA (Bar No. 6051)
KIMBERLY T. GUIDRY (Bar No. 7813)
ROBERT T. NAKATSUJI (Bar No. 6743)
Deputy Attorneys General
DEPARTMENT OF THE ATTORNEY
GENERAL, STATE OF HAWAI‘I
Attorneys for Plaintiff, State of Hawai‘i

18

NEAL K. KATYAL*
COLLEEN ROH SINZDAK*
MITCHELL P. REICH*
ELIZABETH HAGERTY*
THOMAS P. SCHMIDT*
SARA SOLOW*
ALEXANDER B. BOWERMAN*
HOGAN LOVELLS US LLP
*Admitted Pro Hac Vice
Attorneys for Plaintiffs, State of
Hawai‘i and Ismail Elshikh