Hart, Rosemary (OLC) From: Hart, Rosemary (OLC} Sent: Saturday, January 28, 2017 3:54 PM To: Stewart, Scott {OLC}; Gannon, Curtis E. {OLC) Subject: RE: TO PRINT: (b) (5) Checking now - -Original Message----From: Ste-wart, Scott {OLC} Sent: Saturday, January 28, 2017 3:19 PM (b ) (6 ) To: Gannon, Curtis E. {O LC) < (b) (6 ) Cc: Stewart, Scott (OLC} < Subject: FW: TO PRINT: ~ Hart, Rosemary {OLC} • (b ) (6 ) I believe that this was the final. Rosemary, do you happen to know whether this is the one that you printed and included with the F&L paperwork? - Original Message-From: Stewart, Scott {Ol e} {mailto Sent: Friday, January 27, 2017 5:02 PM Document ID: 0.7.12561.14220 (b) (6 ) Hart, Rosemary (OLC) From: Hart, Rosemary {OLC) Sent: Saturday, January 28, 2017 4:00 PM To: Stewart, Scott (OLC); Gannon, Curtis E. (Ole} Subject: RE: TO PRINT: (b)(5) Yes, they conta in the redlined changes, though our Word document that we folded into PDF F&L has some formatting issues that may have happened during fold-in. -Original Message-From: Stewart, Scott (OLC) Sent: Saturday, January 28, 2017 3:19 PM Document ID: 0.7.12561.14207 Hart, Rosemary (OLC) From: Hart, Rosemary (OLC} Sent: Saturday, January 28, 2017 4:01 PM To: Stewart, Scott {Ole}; Gannon, Curtis E. {OLC) Subject: FW: OLC approval paperwork Protecting the Nation EO 1 27 2017 Attachments: OLC approval paperwork Protecting the Nation EO 1 27 2017.docx Here is what I sent. Document ID: 0.7.12561.14212 Office of the Assistant Attorney General Washington, D.C. 20530 January 27, 2017 MEMORANDUM Re: Proposed Executive Order Entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States" The attached proposed Executive Order was prepared by the Domestic Policy Council and forwarded to this Department for review with respect to form and legality. The Order would direct a range of executive branch actions designed to ensure that foreign nationals who are approved for admission to the United States do not intend to harm Americans and have no ties to terrorism. Following is a description of several of the actions directed under the Order. The proposed Order would require the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine the information needed from other countries to adjudicate visas, admissions, or other benefits under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 et seq. It would then direct the Secretary of State to request that other countries provide such information within 60 days. The Order would direct the Secretary of Homeland Security to submit to the President a list of the countries that do not provide such information for inclusion in a presidential proclamation generally prohibiting the entry of nationals from those countries. The Order would also suspend the entry of immigrants and non-immigrants from countries referred to in section 217(a)(12) of the INA, subject to case-by-case exceptions. The Order would also direct the Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation to develop uniform screening standards and procedures to identify individuals seeking to enter the United States on a fraudulent basis or with the intent to cause harm, or who are at risk of causing harm after admission. In addition, the Order would direct the Secretary of State to suspend the U.S. Refugee Admissions Program ("USRAP") for 120 days, subject to case-by-case exceptions. During that 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, would determine what additional procedures can be taken to ensure that refugees who are approved for admission do not pose a threat to the security and welfare of the United States. Pursuant to section 212(f) of the INA, the President would proclaim that the entry of Syrian refugees, and the entry of more than 50,000 Document ID: 0.7.12561.14212-000001 refugees in fiscal year 2017, would be detrimental to the interests of the United States and would suspend such admissions. The proposed Order is approved with respect to form and legality. Curtis E. Gannon Acting Assistant Attorney General 2 U.S. Department of Justice Office of Legal Counsel Document ID: 0.7.12561.14212-000001 Office of the Assistant Attorney General Washington, D.C. 20530 January 27, 2017 The President, The White House. My dear Mr. President: I am herewith transmitting a proposed Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This proposed Order was prepared by the Domestic Policy Council and forwarded to this Department for review of its form and legality. The proposed Executive Order is approved with respect to form and legality. Respectfully, Curtis E. Gannon Acting Assistant Attorney General Document ID: 0.7.12561.14212-000001 Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States EXECUTIVE ORDER PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1 101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows: Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 1 1, 2001 , when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 1 1 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States. Numerous foreign-born individuals have been convicted or implicated in terrorismrelated crimes since September 1 1, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism. In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation. Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the 1 Document ID: 0.7.12561.14212-000001 admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes. Sec. 3. Suspension ofIssuance of Visas and Other Immigration Benefits to Nationals of Countries ofParticular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat. The Secretary of Homeland Security, in consultation with the Secretary of State and (b) the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence. (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), 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.S.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 (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G4 visas). (d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification. (e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs. 2 Document ID: 0.7.12561.14212-000001 (f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. (g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked. (h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order. Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director ofthe Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States. (b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order. Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall 3 Document ID: 0.7.12561.14212-000001 implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States. (b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims 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 nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization. (c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest. (d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1 182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest. (e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship and it would not pose a risk to the security or welfare of the United States. (f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order. It is the policy of the executive branch that, to the extent permitted by law and as (g) practicable, State and local jurisdictions be granted a role in the process of determining 4 Document ID: 0.7.12561.14212-000001 the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement. Sec. 6. Rescission ofExercise ofAuthority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1 182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda. Sec. 7. Expedited Completion ofthe Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States. (b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days ofthe date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational. Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. (b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected. Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable. 5 Document ID: 0.7.12561.14212-000001 Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter: (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later; information regarding the number of foreign nationals in the United States (ii) who have been radicalized after entry into the United States and engaged in terrorismrelated acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and (iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses. (b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels. Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect: (i) the authority granted by law to an executive department or agency, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. 6 Document ID: 0.7.12561.14212-000001 (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. 7 Document ID: 0.7.12561.14212-000001 Colborn, Paul P (OLC) From: Colborn, Paul P (OLC) Sent: Saturday, January 28, 2017 5 :01 PM To: Stewart, Scott {Ole) Cc: Hart, Rosemary (OLC}; Gannon, Curtis E. (OLC); Koffsky, Daniel l (OLC} Subject: Re: IMPORTANT: : EO review (b) (5) On Jan 28, 2017, at 2:10 PM, Stewart, Scott (OLC) • (b)(6) >wrote: (b) (5) . I'll give some t hought to an alternative, and of course am open to alternative reads and assessments. From: Hart, Rosemary {OLC} Sent: Saturday, January 28, 20171:40 PM To: Gannon, Curtis E. (OLC) • (b) (6) • (b) (6) Colborn, Paul P (OLC) • (b) (6) (OLC) • Subject: IMPORTANT:: EO review Importance : High Koffsky, Daniel L {OLC} (b) (6) >; Stewart, Scott OLC only: What do you t hink of the OPA' s suggestion: (b) (5) - --Original Message----From: Carr, Peter (OPA} Sent: Saturday, January 28, 20171:32 PM duplicate Document ID: 0.7.12561.14196 duplicate Document ID: Gannon, Curtis E. (OLCJ From: Gannon, Curtis E. (0 LCi Sent: Saturday, January 28, 2017 9:49 PM To: Hart, Rosemary ( Ole) Cc: Stewart, Scott (OLC) Subject: Re: Breaking News: A f ederal j udge st ayed part of President Trump's immigrati on order, barring refugees stoppe-0 at U.S. ai rports from bei ng sent back Thanks. On Jan 28, 2017, at9:41 PM, Hart, Rosemary (OLC) , (b)(6 ) I> wrote: FYI Begin forwarded message: From: NYTimes.com News Alert Date: January 28, 2017 at 9 :36:27 PM EST To: < > Subject: Breaking News: A federal judge stayed part of President Trump's immigration order, barring refugees stopped at U.S. airports from being sent back Add nytclirec:t@rlylim!S .c:omto )OW ab es tx>oi:. J anuary 28, 2017 NYTim es.mm » Breaking News Alert EIREA_KI NG NEWS A federal judge stayed part of President Trump's immigration order, barring refugees stopped at U .S. airports from being sent back SaturdaY, January28, 20179:31 PM EST A federal judge blocked part of President Trump's executive order on imi:rugration on Saturday evening, ordering that refugees and others trapped at airports across the United St ates should not be sent back to their home countries. But the judge stopped short of Jetting them into the country or issuing a broader ruling on the constitutionality of.Mr. Trump's actions. Lawyer s who sued the government to block the \\1hite House order said the decision, which came after an emergency hearing in a New York City courtroom, could affect an estimated 100 to 200 peop1e ,,.·ho were detained upon arrival at American airports in the wake of the order t hat Mr. Trump Slglled on F riday afternoon, a week into his nreside.ncv. Document ID: 0.7.12561 .14182 --- - r "' - - - -·- .,. Read more )> FOLLOW NYT im~ Get more HYTi mes.com new~ etters » FAC!:BOOK @NYTine5 Get unlimited access to NYTi m es.com and our NYTimes apps for just S0.99. Subs::ribe • ABOUT THIS EMAIL Y cu recelred 1h i; rress age beceuse yous igned up fa,r l'l(1)rrs. com; Coppighl2017TheN-BY Yai Document ID : 0 .7 .12561.14 182 nrrs Corrpany a- e:;it i"lg Ne.Y s Aats nBY s lets 620 EighthAvenueNew Yai, NY10018 Stewart, Scott (OLC) From: Stewart, Scott (OLC} Sent: Sunday, January 29, 2017 12:00 PM To: Gannon, Curtis E. (OLC) Cc: Hart, Rosemary (OLC} Subject: Re: Breaking News I plan to be in a little later too. I've been handling stuff at home for now because it has been radio s ilence from the WH. On Jan 29, 2017, at 9:57 AM, Gannon, Curtis E. (OLC) ,. (b) (6) :> wrote: (b) (5) . Enjoy your visit. Thanks. On Jan 29, 2017, at 9:43 AM, Hart, Rosemary (OLC} • (b) (6) > wrote: Haven't seen a draft of this. (b) (6) I plan to be in around 12 today. and so won't be checking my email from 10:30-11:30. Please call (b) (6) my cell if you need me during that time. ,. Begin forwarded message: From : CNN Breaking News Date: January 29, 2017 at 9:06:27 AM EST To: Subject: Breaking News White House officials are discussing the possibility of a sking foreign visitors to disclose websites and social media sites they vis it, and to share cell phone contacts, sources tell CNN. Get complete coverage of breaking ne ws on CNN TV, CNN.com and CNN Mobile. Watch CNN live or On Demand from your computer or mobile device using CNNgo. You have opted-in to receive this e-mail from CNN.com. Document ID: 0.7.12561.13721 To unsubscribe t ram Breaking News e-mail alerts, go to: http://cnn.com/EMAIL/breakingnews/unsubscribe.html? l=domestic-adh-bn One CNN Center Atlanta, GA 30303 (c) & (r) 2016 Cable News Network Document ID: 0.7.12561.13721 Gannon, Curtis E. (OLC) From: Gannon, Curtis E. (OLC) Sent: Sunday, January 29, 201 7 2:45 PM To: Hart, Rosemary (OLC} Subject: RE: (b) (5 ) Thanks _ Had received it on my OSG account_ That's reassuring to know about_ From: Hart, Rosemary {OLC) Sent: Sunday, January 29, 2017 2:38 PM (b ) (6 ) To: Gannon, Curtis E. (OLC) • (b) ( 5 ) Subjert: Tried to send this via westlaw email, but sending again in case it didn' t arrive. Document ID: 0.7.12561.13622 (b) (5) Colbor i>•u P Ol Fre>mc Co:.tx>.:n, J>o-iJ ? l()LC) S ~y, fanuary 2a 2017 $:16 Pl,' lf>,-i;, llc,;e rro -y fO LC) Srnt : To: l:;;ni,,J l {01.Cl; Gamcn, Cutis f . COLC) Re: MPOR1AITT= ro «dfs\y, Cc Subj«t: .,......,-p:..,.~ ••'1<1tt..e= Qs (b) (5) p.,__To be m::rep:e6~, - Se.nt -&:m :rry iPhott O n Jan 29, 2017, >t 4:53 PM Cdl:vn. Po u P (OLCJ < (b) (6) (b) (5) (b) (5) -· ~~J t ?'i!:~ l ee ~ Je:sbo.·..s !-!l~Jt~~ ~ ·.:, r&_ Document ID: 0.7.12561 .13368 ~~'"'S The first one (Arnsdorf} is a representative example, but we have 26 others from him in similar form, seeking other F&Ls. Jared Kaprove FOIA and Records Management Attorney Office of Legal Counsel U.S. Department of Justice Document ID: 0.7.12561.41736 Heath, Brad From: Heath, Brad Sent: Sunday, January 29, 2017 11:18 PM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: FOIA Request Attachments: DOJ - OLC - Travel EO Records -1.29.2017.pdf Please see the attached request. Brad Heath USA..,.ODM bheath.@usatodav.com I Document ID : 0.7 .12561 .41736-000001 P. 202 527-9709 I 7950 Jones Branch Drive, Mclean, Virginia 22108 r@bradheath USA TODA~ A. GA.HHETT COMPANY January 29, 2017 VIA ELECTRONIC MAIL TO usdo j-officeoflegalcounsel@ usdo j.gov FOIA Officer Office of Legal Counsel U.S. Department of Justice Room 5515, 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 Re: Freedom of Information Act request Dear FOIA Officer: This is a request for records under the Freedom of Information Act, 5 U.S.C. § 552. Please provide me with: 1. Complete copies of any opinions or memoranda regarding the President's Executive Order concerning " Protecting the Nation From Foreign Terrorist Entry Into the United States." Such records wou ld have been produced since January 20, 2017 . 2. Complete copies of any work logs, correspondence logs, or telephone logs related to the President's Executive Order concerning " Protecting the Nation From Foreign Terrorist Entry Into the United States." Where possible, please furnish the records in an electronic format pursuant to 5 U.S.C. §§ 552(a)(3)(B)-(C). Because this is a request by the news media for information of significant public interest, I ask that you waive any search fees in accordance with§ 552(a)(4)(A)(ii)(II). If the cost ofreproducing these records will exceed fifty dollars ($50.00), please notify me before USA TODAY Document ID: 0.7.12561.41736-000002 • 7950 Jones Branch Drive, Mclean, VA 22108·0605 • www.usatoday.com 2 filling this request. I may be reached at (202) 527-9709, or by electronic mail at bheath@usatoday.com. If for any reason any portion of this request is denied, please provide written notice of the specific records or portions of records that were withheld, and the specific statutory basis for the withholding. Please also provide the name and address of the officer or body to which my appeal may be directed. As you know, the Act, in § 552(a)(6), grants an agency no more than twenty working days in which to respond to this request. See Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) ("Congress adopted the time limit provision in the FOIA in order to 'contribute to the fuller and faster release of information, which is the basic objective of the Act.'” (quoting H.R. Rep. No. 93 -876, March 5, 1974., reprinted (1974) U.S. Code Cong. & Ad. News 6267 at 6271)). I therefore look forward to your prompt reply. Sincerely, Brad Heath Document ID: 0.7.12561.41736-000002 Research Info From: Research Info Sent: Monday, January 30, 2017 8:59 AM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: FOIA Request Lauren Dillon 4 30 S Capitol Street SE \Vasbington, DC 20003 Melissa Golden Lead Paralegal andFOIA Specialist Office of Legal Counsel Department of Justice Room 5511 , 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 Dear Freedom of Information/Open Records Officer. Pursuant to the Federal Freedom of Information Act, 5 U.S .C. § 552, and all other applicable state and federal statutes, I request from the Department of Justice' s Office of Legal Counsel the following records created on or between January 20, 2017 and January 29, 2017: • All records (inch.Kling legal opinions, emails, memoranda, advisories, correspondence, telephone records, or any other docwnent) related to the Executive Order issued by the President of the United States on January 27, 2017 entitled "'Protecting the Nation From Foreign Terrorist Entry into the United States." I request that the information I seek be provided, if possible, in an electronic format via a personal computer disk or CD-ROM. I understand that there might be costs associated with this request. I would request a waiver offees and ask for you to contact either of us by telephone before making copies if this request ,vill be in excess of$50. -l I would appreciate your communicating with us by email at Researchinfo@dnc.org or by telephone at1E>$1 rather than by mail, if you have questions regarding this request. If all or any part of this request is denied, please cite the specific exemption which you believe _justifies your refusal to release the information and inform us of your agency's administrative appeal procedures available to me wider the law. We request that vou expedite this request as it relates to a matter of significant public interest. Thank you for your assistance in this matter. Sincerely, Document ID: 0.7.12561.41736-000003 Lawn Dillon Document ID: {1112561 J@Jll@americanintegritycenter.org Sent: Q M@americanintegritycenter.org Monday, January 30, 2017 12:26 AM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: FOIA request -- expedited treatment requested From: Dear Ms . Golden: T his is a request under the Freedom of Information Act. I hereby request copies of all form and legality memoranda related to all executive orders issued in the following time periods: • January 20, 20 17 through January 30, 2017, inclusive • January 20, 2009 through January 30, 2009, inclusive As FOlA requires, please release all reasonably segregable nonexempt portions of documents. I request expedited processing of this request under 28 C.F.R. 16.S( d)( l )(iv), as "[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence. " The executive orders issued since January 20 have attracted exceptional public and media interest. They have been the subject of dozens of media stories and major protests throughout the nation. The orders hav e significant implications for the safety, health, and rights of all U.S . citizens and legal permanent residents, as well as for the ethical conduct of government within the executiv e branch. Understanding the approv al process for these orders will educate the public about whether the government is observing its historic safeguards and affect public confidence in the functioning of the executiv e branch . T he form and legality memoranda concerning the executive orders issued in the first week of the previous presidential administration will give members of the public a reference point for understanding the process that w as followed for the recent orders . If some, but not all, of t he documents require privilege review, please release all documents that do not require priv ilege review on an expedited basis rather than waiting for the conclusion of the privilege review of documents that do require a rev iew . I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activit ies of the government and is not being made for commercial use. In order to help determine my status to assess fees, you should know that I am affiliated with an organization dedicated to good government whose non-profit status is pending . This request is made in collaboration with a media organization . The information sought by this request will add to the public's understanding of executiv e orders that are the topic of significant public interest. Thank you for your consideration of this request. Sincerely, Jeffrey Dubner Document ID: 0.7.12561.41736-000004 Executive Director T he American I ntegrity Center 525 Quincy St. NW Washington, DC 20011 IIIIIIIIBalll Document ID: 0.7.12561.41736-000004 32619-92942735@requests.muckrock.com From: 32619~9294273S@requests.muckrock.com Sent: Sunday, January 29, 2017 3:37 PM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: Freedom of Information Request: OLC review of Trump immigration EO January 29, 2017 Department of Justice, Office of Legal Counsel Bette Farris, Supervisory Paralegal Office of Legal Counsel Department of Justice Room 5515 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 To Whom It May Concern: This is a request under the Freedom of Information Act. I hereby request the following records: - The OLC opinion and any related memoranda reviewing President Trump's Jan. 27 executive order restricting immigration from certain countries, "Protecting the Nation From Foreign Terrorist Entry Into the United States." The requested documents will be made available to the general public, and this request is not being made for commercial purposes. In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not. Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires. Sincerely, CJ Ciaramella Filed via MuckRock.com E-mail (Preferred): 32619-92942735@requests.muckrock.com For mailed responses, please address (see note}: MuckRock DEPT MR 32619 411A Highland Ave c~ -~~ -:11~ A~ II n,1,111 'lC1 C Document ID: 0.7.12561.41736-000005 .:>Ulllt:I Vlllt: 1 IVl/"\ V£.L't-'+- £,:l.l.O PLEASE NOTE: This request is not filed by a MuckRock staff member, but is being sent through MuckRock by the above in order to better t rack, share, and manage public records requests. Also note that improperly addressed (i.e., with the requester's name rather than "MuckRock News" and the department number) requests might be returned as undeliverable. Document ID: 0.7.12561.41736-000005 Kel McClanah.m, Esq. From: Kel Mcc lanahan, Esq. Sent: Sunday, January 29, 2017 11:29 PM To: OLC FOIA Subject: New Expedited FOIA request The New York Tim es reported today that the White House has st ated that President Trump's immigration ban "had gone through the usual process of scrutiny and approval by the Office of Legal Counsel." ht! ps ://www _nyti mes _co m/20 17/ 01/ 29/us/ polit ics/ donaId-t ru mp-ru sh-immigratio n-ord er-chaos _ht ml This is a FOIA request on behalf of my client Ken Dilanian for all records. including emails, documenting any discussions on immigration-related topics between the W hite House (since 1/ 20/ 17) or any member of President Trump's transition team, landing team, or beachhead teams, including, but not limited to, records related to OLC's "scrut iny and approval" of t he relevant Executive Order. In anticipation of a privilege-base argument, I point out that the fact that the W hite House has officially confirmed t hat OLC "scrutin[ized] and approv[_ed]" this Executive Order effectively w aives any claim of privilege fo r the portions of any records documenting this scrutiny and approval, and likely waives t he privilege entirely fo r such documents. W e request that all records be released in electronic form, either by email or on a CD sent to t he below address. Mr. Dilanian is an intelligence and national sec urity reporter for NBC and c learly a representat ive of the news media. Because of t his, and t he fact that we have requested electronic records, w e do not anticipate t he assessment of any fees for this request. However, I will specifical ly stat e for the record my client's unwillingness to pay any fees fo r this request. W e request expedited processing of this request. Mr. Dilanian is clearly a person primarily engaged in the dissemination of information, and the subj ect of President Trump's immigration policies is obviously a subject of great national interest and breaking news. as any Google search will show.Y our cooperation in t his matter would be appreciated. If y ou w ish to discuss this request, please do not hesitate to contact me. Sincerely, Kel Mc Clanahan National Security Counselors (b) (6) This electronic mail (email} transmission is meant solely for the person(s} to whom it is addressed. It contains confidential information that may also be legally privilege-cl. Any copying, dissemination or distribution of the contents of this email by any one other t han the addressee or his or her agent fo r such purposes is stri ctl y prohibited. If y ou have received t his email in error, please notify me immediately by telephone or email and purge the original and all copies t hereof. Thank y ou. Kel McClanahan, Esq. Executive Dire ctor National Security Counselors "As a general rule, the most successful man in life is the man who has t he best informat ion." Benjamin Disraeli, 1880 "Quis custodiet ipsos custodes?" ('Who will watch t he w atchers?") Juvenal, Satire VI Document ID: 0.7.12561 .41736-000006 Document ID: {1112561 Savage, Cha rlie From: Savage, Charlie Sent: Saturday, January 28, 2017 5:20 PM To: USDOJ-Office of legal Counsel (SMO) Cc: David McCraw; Ian MacDougall Subject: NYT FOIA request Dear FOIA officers, Under th e Freedom of Informati on Act, I request access to all e-m ails, m emos, and other documents rel ated to 1. Office of Legal Counsel review of proposed Trump admi nistrati on executive orders for form and l egalitV, i ncludi ng duri ng the transit ion peri od 2. Office of Legal Coun sel review of other prop os ed Trump Whi te House matters, i ncludi ng duri ng the transi t i on peri od, i ncluding but not limi ted to w hether the appoi ntment of Jared Kushner to a Whit e House rol e woul d vi ol ate anti-nepotism l aws and w hether the presi dent's ongoi ng busi ness operations wou ld vi ol ate the emol uments cl ause of the Constitution Because I am a member of the news medi a gatheri ng information for public consumption, I respectfully request a fee wa iver. Thank you for your assistance. Pl ease feel free to email me the document, but if you need to mail a d isc for internal procedural reasons, I am at c/ o The New York Tim es 1627 1StNW 7th Fl oor Washi ngton, DC 20006 Charlie Savage The New York Times Phone: 202-862-0317 Cell: Document ID: 0.7.12561.41736-000007 Isaac Arnsdorf via iFOIA.o rg From: Isaac Arnsdorf via iFOIA.org Sent: Friday, January 27, 2017 6:46 PM To: FOIA Officer Subject: Public Records Request Attachments: Muslim ban-1-1-1-1-1-1-1-1-1-1-1-1-1-1-1.pdf Reply ABOVE TH IS LINE Dear FOIA Officer: Attached is a formal request for public records. Please feel free to contact me at this email a ddress or (b) (6) at with any questions. Thank you for your assistance. Sincerely, Isaac Arnsdorf This message was sent vi a iFOIA..org. If you have questi ons about iFOIA, please refer to t he About page or email ifoiahel p@rcfp.org. This message was sent via iFOfA.orq, Document ID: 0.7.12561 .41736-000008 Isaac Arnsdorf Journalist Politico 1000 Wilson Blvd 8th Floor Arlington, VA 22209 (b) (6) January 27, 2017 FOIA Officer Department of Justice Office of Legal Counsel 950 Pennsylvania Avenue, NW Room 5515 Washington, DC 20530-0001 (202) 514-2038 usdoj-officeoflegalcounsel@usdoj.gov FOIA REQUEST Fee waiver requested Dear FOIA Officer: Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I request access to and copies of OLC's form and legality memo since Jan. 20, 2017, for an Executive Order titled "Protecting the Nation from Foreign Terrorist Entry into the United States," issued Jan. 27, 2017. I would like to receive the information in electronic files. I agree to pay reasonable duplication fees for the processing of this request in an amount not to exceed $250. However, please notify me prior to your incurring any expenses in excess of that amount. Please waive any applicable fees. Release of the information is in the public interest because it will contribute significantly to public understanding of government operations and activities. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees. I would appreciate your communicating with me by email or telephone, rather than by mail. Please provide expedited processing of this request which concerns a matter of urgency. As a journalist, I am primarily engaged in disseminating information. The public has an urgent need for information about the legal justification for executive actions that affect great numbers of people. I certify that my statements concerning the need for expedited processing are true and correct to the best of my knowledge and belief. I look forward to your determination regarding my request for expedited processing within 10 calendar days, as the statute requires. Thank you for your assistance. Sincerely, Document ID: 0.7.12561.41736-000009 Isaac Amsdorf Document ID: O.7.12561.41736-000009 Jason Leopold From: Jason Leopold Sent: Saturday, January 28, 2017 2:44 PM To: FOIArequests, CRT (CRT); FOIA, Civil.routing; FOIARequests, EOIR (EOIR); NSDFOIA (NSD); USOOJ-Office of Legal Counsel (SMO) Subject: Request for records under the Freedom of Information Act This is a request fo r records under the Freedom of Information Act (~FOIA"), 5 U.S.C. § 552 and the Pri vacy Act, 5 U.S.C. §- 552a. Thi s request shoul d be considered under both statutes to maxi mi ze the re l ease of re<:ords. Thi s request seeks exped ited processi ng. REQUESTER INFORMATION Name: Jason Leopol d Posi t ion: Investigati ve Reporter Address: Email: (b) (6) (b) (6) RECORDS SOUGHT I request any and all records, wh ich i ncl udes but i s not limi ted to lt~gal opini ons, reports, emails, memoranda, i n the possessi on of certai n di visions of the Department of Justice, (see offkes this requ est is addressed to above), that m entions or refers to Presi dent Donal d Trump's Muslim Ban, also known as the "extreme vetting" executi ve order dated January 27, 2017. The ti t le of the exe<:uti ve order is: "Protecti ng the Nation From Foreign Terrori st Entry Into The United States." The t imeframe for my request is January 1, 2017 through the date the search for responsi ve records is conducted. EXPEDITED PROCESSING I am seeki ng expedited processi ng for this request. Since this exe<:utive order w as signed on January 27, 2017, numerous i ndi vi duals have been detai ned at a irpons around the Uni ted States and news reports have descri bed the impact of the executi ve order as. "compl ete chaos." [http://www.usatoday.com/story/news/2017/01/28/ complete-chaos.-1000-calls-aftertrump-i mmigrant-ban-hi ts/9718456-0{1. Lawsui ts have been f iled challengi ng the consti tutionality of the executive order. For many of these: refugees th i s is now a life and death s i tu ation. Document ID : 0 .7 .12561.41736-000010 INSTRUCTIONS REGARDING SEARCH (for purpos es of this search DOJ com ponents" refers to t he components w i t hi n DOJ that have been i denti fi ed as having respons ive records) 1. Instructions Regarding "leads": As required by the re levant case l aw, the DOJ components shou ld follow any l eads i t di scovers duri ng the cond uct of i ts searches and perform addi ti onal searches wh en said l eads i nd icate t hat records may be l ocated i n another system. f ailure to follow cl ear leads i s a violati on of FOIA. 2. Req uest for Public Records: Pl eas.e search for any records even i f they are al ready publicly availabl e. 3. Request for El ectronic and Paper/ Manual Searches: I request that searches. of all el ectronic and paper/ manual i ndices, fil ing syst ems, and locati on s fo r any and all records re lati ng or ref erri ng to t he subj ect of my request be conducted. 4. Requ est for Search of Fi ling Systems, Indi ces, and Locations: I request that the DOJ compon ent s search a ll of its offices and components, w hich are li ke ly to contai n responsi ve records. S. Requ est regard i ng Photographs and other Visual Materi als: I request that any photographs or other visua l materia ls responsi ve to my request be re l eased to m e i n t hei r origi nal or comparable forms, quality, and resoluti on. For exampl e, i f a photograph w as take n digitally, or i f the DOJ com ponents mai ntains. a photograp h d igi tally, I request disclosure of the origi na l d igi ta l image fil e, not a reduced resol uti on vers i on of that image fil e nor a pri ntout and scan of that image file. likew ise, if a photograph was origi nally t aken as a color photograph, I reques.t di sclosure of that photograph as a col or i mage, not a b lack and whi t e im age. Please contact m e for any clari fi cation on thi s poi nt. 6. Request for Duplicate Pages: I request d iscl osure of any and all supposedly "duplicate• pages. Schol ars anal yze reco rds not onl y for the i nformation available on any gi ven page, but a lso for t he re lati onships between that i nformati on and i nformation on pages surroundi ng i t. As such, though certa in pages m ay have been previ ousl y rel eased to m e, the existence of those pages w i t hi n new context renders t hem f unctionally new pages. As such, the only way to properl y anal yze re leased i nformati on i s to anal yze that information w i thi n i ts proper context. Therefore, I requ est d isclosure of all "dupl icate" pages. 7. Request to Search Emails: Please search for e mails re lat i ng to the s.ubje-ct matter of my request. 8. Requ est for Search of Records Trans ferred to Other Agencies: I request that in conducti ng i ts search, the DOJ compon ents disclose re leasable records even if t hey are ava ilable publicly t hroug h other sources outsi de the DOJ components, such as NARA. Document ID : 0.7.12561.41736-000010 9. Regard i ng Destroyed Records If any records respons ive or potenti ally responsi ve to my request have been destroyed, my request i ncl udes, but i s not limi ted to, any and a ll records rel at i ng or referri ng to the destructi on of those records. Thi s includes, but i s not lim it ed to, any and all re-cords re lating or referring to the events l eading to the destructi on of those records. I NSTRUCTIONS REGARDING SCOPE AND BREADTH OF REQUESTS Please i nterpret the scope of th is request broadly. The DOJ components i s i nstructed to i nterpret the scope of th i s request i n the most liberal manner possi b le short of an interpretati on that wou ld l ead to a conclusi on that the request does not reasonabl y describe th e records sought. EXEMPTIONS AND SEGREGABI LITY I call your attention to President Obama's 21 January 2009 Memorandum concern i ng the Freedom of I nformation Act, i n wh ich he states: All agencies should adopt a presumption i n favor of d i scl osure, in order to renew their comm itment to the pri nci pl es embod ied in FOIA [ ....) The presumption of d i sclosure should be applied to all deci si ons i nvol vi ng FOIA. I n the same Memorandum, Presi dent Obama added that government i niormati on should not be kept con fidentia l Nmerely because public official s might be embarrassed by d i scl osure, because errors and fa ilures m ight be reveal ed, or because of speculati ve or abstract fears.• Fi na lly, President Obama ordered that "The Freedom of I nformati on Act should be admi ni stered w i th a cl ear presumpti on: I n the case of doubt, openn ess prevails." Nonethel ess, if any responsi ve record or porti on thereof i s cl ai med to be exempt from producti on, FOIA/ PA statutes provide that even i f some of the requested materia l i s properl y exempt from mandatory discl osure, all segregable porti ons must be rel eased. If documents are denied i n part or in whol e, p lease speci fy wh ich exempti on(s) i s (are) clai med fo r each passag e or whole document deni ed. Pl ease provid e a comp lete item i zed i nventory and a det ailed factual justification of tota l or parti al deni a l of documents. Specify the number of pages i n each document and the tota l number of pages perta ini ng to thi s request. For "cl assified" material denied, p lease i nclude the following informati on: the cl assi ficati on (confi denti al, secret or top secret); i denti ty of the cl assi fi er; date or event for automati c decl assification or classificati on revi ew or downgrad i ng; i f applicabl e, identity of offici al authori zi ng extensi on of automatic decl assi f icati on or revi ew past si x years; and, i f applicabl e, the reason for extended cl assificat ion beyond si x years. I n excising materia l, pl ease "bl ack out" the materia l rather than "whi te out" or "cut out." I expect, as provi ded by FOIA, that the rema i ni ng non-exempt portions of documents w ill be rel eased. Pl ease re l ease all pages regard less of the extent of exci si ng, even if all that rema ins are the stati onery headi ngs or admi ni strati ve marki ngs. I n addi t ion, I ask that your agency exercise its di screti on to re l ease records wh ich may be techn ically exempt, but where w ithhol di ng seNes no important public i nterest. ADDITIONAL INSTRUCTIONS REGARDI NG REQUEST Pl ease produce all records w i th admini strati ve marki ngs and pagi nation i ncl uded. Pl ease send a memo (copy to m e) to th e appropriate uni ts i n your office to assure that no records related to th i s requ est ;:i,rp 1'11:u;Trn.vPti P IP;::ac;p ;:i;rlui c; P nf ;:anv rh:u ;tnarti nn nf rP The fi rst one (Arnsdorf} is a representative example, but we have 26 others from him in similar form, seeking other F&Ls. Jared Kaprove FOIA and Records Management Attorney Office of Legal Counsel U.S. Department of Justice Document ID: 0.7.12561.14693 Heath, Brad From: Heath, Brad Sent: Sunday, January 29, 2017 11:18 PM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: FOIA Request Attachments: DOJ - OLC - Travel EO Records -1.29.2017.pdf Please see the attached request. Brad Heath USA..,.ODM bheath.@usatodav.com I Document ID: 0.7.12561.14693-000001 P. 202 527-9709 I 7950 Jones Branch Drive, Mclean, Virginia 22108 r@bradheath USA TODA~ A. GA.HHETT COMPANY January 29, 2017 VIA ELECTRONIC MAIL TO usdo j-officeoflegalcounsel@ usdo j.gov FOIA Officer Office of Legal Counsel U.S. Department of Justice Room 5515, 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 Re: Freedom of Information Act request Dear FOIA Officer: This is a request for records under the Freedom of Information Act, 5 U.S.C. § 552. Please provide me with: 1. Complete copies of any opinions or memoranda regarding the President's Executive Order concerning " Protecting the Nation From Foreign Terrorist Entry Into the United States." Such records wou ld have been produced since January 20, 2017 . 2. Complete copies of any work logs, correspondence logs, or telephone logs related to the President's Executive Order concerning " Protecting the Nation From Foreign Terrorist Entry Into the United States." Where possible, please furnish the records in an electronic format pursuant to 5 U.S.C. §§ 552(a)(3)(B)-(C). Because this is a request by the news media for information of significant public interest, I ask that you waive any search fees in accordance with§ 552(a)(4)(A)(ii)(II). If the cost ofreproducing these records will exceed fifty dollars ($50.00), please notify me before USA TODAY Document ID: 0.7.12561 .14693-000002 • 7950 Jones Branch Drive, Mclean, VA 22108·0605 • www.usatoday.com 2 filling this request. I may be reached at (202) 527-9709, or by electronic mail at bheath@usatoday.com. If for any reason any portion of this request is denied, please provide written notice of the specific records or portions of records that were withheld, and the specific statutory basis for the withholding. Please also provide the name and address of the officer or body to which my appeal may be directed. As you know, the Act, in § 552(a)(6), grants an agency no more than twenty working days in which to respond to this request. See Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 65 (D.C. Cir. 1990) ("Congress adopted the time limit provision in the FOIA in order to 'contribute to the fuller and faster release of information, which is the basic objective of the Act.'” (quoting H.R. Rep. No. 93 -876, March 5, 1974., reprinted (1974) U.S. Code Cong. & Ad. News 6267 at 6271)). I therefore look forward to your prompt reply. Sincerely, Brad Heath Document ID: 0.7.12561.14693-000002 Research Info From: Research Info Sent: Monday, January 30, 2017 8:59 AM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: FOIA Request Lauren Dillon 4 30 S Capitol Street SE Washington, DC 20003 Melissa Golden Lead Paralegal andFOIA Specialist Office of Legal Counsel Department of Justice Room 5511 , 950 Pennsylvania Avenue, N .W . Washington, DC 20530-0001 Dear Freedom of Information/Open Records Officer. Pursuant to the Federal Freedom of Information Act, 5 U.S.C. § 552, and all other applicable state and federal statutes, I request from the Department of Justice' s Office of Legal Counsel the following records created on or between January 20, 2017 and January 29, 2017: • All records (including legal opinions, emails, memoranda, advisories, correspondence, telephone records, or any other docwnent) related to the Executive Order issued by the President of the United States on January 27, 2017 entitled "Protecting the Nation From Foreign Terrorist Entry into the United States."' I request that the information I seek be provided, if possible, in an electronic format via a personal computer disk or CD-ROM. I understand that there might be costs associated with this request. I would request a waiver offees and ask for you to contact either of us by telephone before maldng copies if this request will be in excess of $50. I would appreciate your communicating with us by email at Researchinfo@dnc.org or by telephone · rather than by mail, if you have questions regarding this request. atlll If all or any part of this request is denied, please cite the specific exemption which you believe justifies your refusal to release the information and inform us of your agency's administrative appeal procedures available to me wider the law. We request that vou expedite this request as it relates to a matter of significant public interest. Thank you for your assistance in this matter. Sincerely, Document ID: 0.7.12561.14693-000003 Lame-11 Dillon Document ID: - @americanintegritycenter.org @americanintegritycenter.org From: Sent: Monday, January 30, 2017 12:26 AM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: FOIA request -- expedited treatment requested Dear Ms . Golden: T his is a request under the Freedom of Information Act. I hereby request copies of all form and legality memoranda related to all executive orders issued in the following time periods: • January 20, 20 17 through January 30, 2017, inclusive • January 20, 2009 through January 30, 2009, inclusive As FOlA requires, please release all reasonably segregable nonexempt portions of documents. I request expedited processing of this request under 28 C.F.R. 16.S( d)( l )(iv), as "[a] matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence. " The executive orders issued since January 20 have attracted exceptional public and media interest. They have been the subject of dozens of media stories and major protests throughout the nation. The orders hav e significant implications for the safety, health, and rights of all U.S . citizens and legal permanent residents, as well as for the ethical conduct of government within the executiv e branch. Understanding the approv al process for these orders will educate the public about whether the government is observing its historic safeguards and affect public confidence in the functioning of the executiv e branch . T he form and legality memoranda concerning the executive orders issued in the first week of the previous presidential administration will give members of the public a reference point for understanding the process that w as followed for the recent orders . If some, but not all, of t he documents require privilege review, please release all documents that do not require priv ilege review on an expedited basis rather than waiting for the conclusion of the privilege review of documents that do require a rev iew . I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activit ies of the government and is not being made for commercial use. In order to help determine my status to assess fees, you should know that I am affiliated with an organization dedicated to good government whose non-profit status is pending . This request is made in collaboration with a media organization . The information sought by this request will add to the public's understanding of executiv e orders that are the topic of significant public interest. Thank you for your consideration of this request. Sincerely, Jeffrey Dubner Document ID: 0.7.12561 .14693-000004 Executive Director T he American I ntegrity Center 525 Quincy St. NW Washington, DC 20011 Document ID: 0.7.12561.14693-000004 32619-92942735@requests.muckrock.com From: 32619~9294273S@requests.muckrock.com Sent: Sunday, January 29, 2017 3:37 PM To: usdoj-officeoflegalcounsel@usdoj.gov Subject: Freedom of Information Request: OLC review of Trump immigration EO January 29, 2017 Department of Justice, Office of Legal Counsel Bette Farris, Supervisory Paralegal Office of Legal Counsel Department of Justice Room 5515 950 Pennsylvania Avenue, N.W. Washington, DC 20530-0001 To Whom It May Concern: This is a request under the Freedom of Information Act. I hereby request the following records: - The OLC opinion and any related memoranda reviewing President Trump's Jan. 27 executive order restricting immigration from certain countries, "Protecting the Nation From Foreign Terrorist Entry Into the United States." The requested documents will be made available to the general public, and this request is not being made for commercial purposes. In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not. Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires. Sincerely, CJ Ciaramella Filed via MuckRock.com E-mail (Preferred): 32619-92942735@requests.muckrock.com For mailed responses, please address (see note}: MuckRock DEPT MR 32619 411A Highland Ave c~ -~~ -:11~ A~ II n,1,111 'lC1 C Document ID: 0.7.12561.14693-000005 .:>Ulllt:I Vlllt: 1 IVl/"\ V£.L't-'+- £,:l.l.O PLEASE NOTE: This request is not filed by a MuckRock staff member, but is being sent through MuckRock by the above in order to better t rack, share, and manage public records requests. Also note that improperly addressed (i.e., with the requester's name rather than "MuckRock News" and the department number) requests might be returned as undeliverable. Document ID: 0.7.12561 .14693-000005 Kel McClanah.m, Esq. From: Kel Mcc lanahan, Esq. Sent: Sunday, January 29, 2017 11:29 PM To: OLC FOIA Subject: New Expedited FOIA request The New York Tim es reported today that the White House has st ated that President Trump's immigration ban "had gone through the usual process of scrutiny and approval by the Office of Legal Counsel." ht! ps ://www _nyti mes _co m/20 17/ 01/ 29/us/ polit ics/ donaId-t ru mp-ru sh-immigratio n-ord er-chaos _ht ml This is a FOIA request on behalf of my client Ken Dilanian for all records. including emails, documenting any discussions on immigration-related topics between the W hite House (since 1/ 20/ 17) or any member of President Trump's transition team, landing team, or beachhead teams, including, but not limited to, records related to OLC's "scrut iny and approval" of t he relevant Executive Order. In anticipation of a privilege-base argument, I point out that the fact that the W hite House has officially confirmed t hat OLC "scrutin[ized] and approv[_ed]" this Executive Order effectively w aives any claim of privilege fo r the portions of any records documenting this scrutiny and approval, and likely waives t he privilege entirely fo r such documents. W e request that all records be released in electronic form, either by email or on a CD sent to t he below address. Mr. Dilanian is an intelligence and national sec urity reporter for NBC and c learly a representat ive of the news media. Because of t his, and t he fact that we have requested electronic records, w e do not anticipate t he assessment of any fees for this request. However, I will specifical ly stat e for the record my client's unwillingness to pay any fees fo r this request. W e request expedited processing of this request. Mr. Dilanian is clearly a person primarily engaged in the dissemination of information, and the subj ect of President Trump's immigration policies is obviously a subject of great national interest and breaking news. as any Google search will show.Y our cooperation in t his matter would be appreciated. If y ou w ish to discuss this request, please do not hesitate to contact me. Sincerely, Kel Mc Clanahan National Security Counselors (b) (6) This electronic mail (email} transmission is meant solely for the person(s} to whom it is addressed. It contains confidential information that may also be legally privilege-cl. Any copying, dissemination or distribution of the contents of this email by any one other t han the addressee or his or her agent fo r such purposes is stri ctl y prohibited. If y ou have received t his email in error, please notify me immediately by telephone or email and purge the original and all copies t hereof. Thank y ou. Kel McClanahan, Esq. Executive Dire ctor National Security Counselors "As a general rule, the most successful man in life is the man who has t he best informat ion." Benjamin Disraeli, 1880 "Quis custodiet ipsos custodes?" ('Who will watch t he w atchers?") Juvenal, Satire VI Document ID: 0.7.12561 .14693-000006 Document ID: Savage, Cha rlie From: Savage, Charlie Sent: Saturday, January 28, 2017 5:20 PM To: USDOJ-Office of legal Counsel (SMO) Cc: David McCraw; Ian MacDougall Subject: NYT FOIA request Dear FOIA officers, Under th e Freedom of Informati on Act, I request access to all e-m ails, m emos, and other documents rel ated to 1. Office of Legal Counsel review of proposed Trump admi nistrati on executive orders for form and l egalitV, i ncludi ng duri ng the transit ion peri od 2. Office of Legal Coun sel review of other prop os ed Trump Whi te House matters, i ncludi ng duri ng the transi t i on peri od, i ncluding but not limi ted to w hether the appoi ntment of Jared Kushner to a Whit e House rol e woul d vi ol ate anti-nepotism l aws and w hether the presi dent's ongoi ng busi ness operations wou ld vi ol ate the emol uments cl ause of the Constitution Because I am a member of the news medi a gatheri ng information for public consumption, I respectfully request a fee wa iver. Thank you for your assistance. Pl ease feel free to email me the document, but if you need to mail a d isc for internal procedural reasons, I am at c/ o The New York Tim es 1627 1StNW 7th Fl oor Washi ngton, DC 20006 Charlie Savage The New York Times Phone: 202-862-0317 Cell: Document ID: 0.7.12561.14693-000007 Isaac Arnsdorf via iFOIA.o rg From: Isaac Arnsdorf via iFOIA.org Sent: Friday, January 27, 2017 6:46 PM To: FOIA Officer Subject: Public Records Request Attachments: Muslim ban-1-1-1-1-1-1-1-1-1-1-1-1-1-1-1.pdf Reply ABOVE THIS LINE Dear FOIA Officer: Attached is a formal request for public records. Please feel free to contact me at this email a ddress or (b) (6) at with any questions. Thank you for your assistance. Sincerely, Isaac Arnsdorf This message was sent vi a i FOIA..org. If you have questi ons about iFOIA, please refer to the About page or email :foiahelp@rdp.org. This message was sent via iFOIAorq. Document ID: 0.7.12561.14693-000008 Isaac Arnsdorf Journalist Politico 1000 Wilson Blvd 8th Floor Arlington, VA 22209 (b) (6) January 27, 2017 FOIA Officer Department of Justice Office of Legal Counsel 950 Pennsylvania Avenue, NW Room 5515 Washington, DC 20530-0001 (202) 514-2038 usdoj-officeoflegalcounsel@usdoj.gov FOIA REQUEST Fee waiver requested Dear FOIA Officer: Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I request access to and copies of OLC's form and legality memo since Jan. 20, 2017, for an Executive Order titled "Protecting the Nation from Foreign Terrorist Entry into the United States," issued Jan. 27, 2017. I would like to receive the information in electronic files. I agree to pay reasonable duplication fees for the processing of this request in an amount not to exceed $250. However, please notify me prior to your incurring any expenses in excess of that amount. Please waive any applicable fees. Release of the information is in the public interest because it will contribute significantly to public understanding of government operations and activities. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees. I would appreciate your communicating with me by email or telephone, rather than by mail. Please provide expedited processing of this request which concerns a matter of urgency. As a journalist, I am primarily engaged in disseminating information. The public has an urgent need for information about the legal justification for executive actions that affect great numbers of people. I certify that my statements concerning the need for expedited processing are true and correct to the best of my knowledge and belief. I look forward to your determination regarding my request for expedited processing within 10 calendar days, as the statute requires. Thank you for your assistance. Sincerely, Document ID: 0.7.12561.14693-000009 Isaac Amsdorf Document ID: O.7.12561.14693-000009 Jason Leopold From: Jason Leopold Sent: Saturday, January 28, 2017 2:44 PM To: FOIArequests, CRT (CRT); FOIA, Civil.routing; FOIARequests, EOIR (EOIR); NSDFOIA (NSD); USOOJ-Office of Legal Counsel (SMO) Subject: Request for records under the Freedom of Information Act This is a request fo r records under the Freedom of Information Act (~FOIA"), 5 U.S.C. § 552 and the Pri vacy Act, 5 U.S.C. §- 552a. Thi s request shoul d be considered under both statutes to maxi mi ze the re l ease of re<:ords. Thi s request seeks exped ited processi ng. REQUESTER INFORMATION Name: Jason Leopol d Posi t ion: Investigati ve Reporter Address: Email: (b) (6) (b) (6) RECORDS SOUGHT I request any and all records, wh ich i ncl udes but i s not limi ted to lt~gal opini ons, reports, emails, memoranda, i n the possessi on of certai n di visions of the Department of Justice, (see offkes this requ est is addressed to above), that m entions or refers to Presi dent Donal d Trump's Muslim Ban, also known as the "extreme vetting" executi ve order dated January 27, 2017. The ti t le of the exe<:uti ve order is: "Protecti ng the Nation From Foreign Terrori st Entry Into The United States." The t imeframe for my request is January 1, 2017 through the date the search for responsi ve records is conducted. EXPEDITED PROCESSING I am seeki ng expedited processi ng for this request. Since this exe<:utive order w as signed on January 27, 2017, numerous i ndi vi duals have been detai ned at a irpons around the Uni ted States and news reports have descri bed the impact of the executi ve order as. "compl ete chaos." [http://www.usatoday.com/story/news/2017/01/28/ complete-chaos.-1000-calls-aftertrump-i mmigrant-ban-hi ts/9718456-0{1. Lawsui ts have been f iled challengi ng the consti tutionality of the executive order. For many of these: refugees th i s is now a life and death s i tu ation. Document ID : 0 .7 .12561 .14693-000010 INSTRUCTIONS REGARDING SEARCH (for purpos es of this search DOJ com ponents" refers to t he components w i t hi n DOJ that have been i denti fi ed as having respons ive records) 1. Instructions Regarding "leads": As required by the re levant case l aw, the DOJ components shou ld follow any l eads i t di scovers duri ng the cond uct of i ts searches and perform addi ti onal searches wh en said l eads i nd icate t hat records may be l ocated i n another system. f ailure to follow cl ear leads i s a violati on of FOIA. 2. Req uest for Public Records: Pl eas.e search for any records even i f they are al ready publicly availabl e. 3. Request for El ectronic and Paper/ Manual Searches: I request that searches. of all el ectronic and paper/ manual i ndices, fil ing syst ems, and locati on s fo r any and all records re lati ng or ref erri ng to t he subj ect of my request be conducted. 4. Requ est for Search of Fi ling Systems, Indi ces, and Locations: I request that the DOJ compon ent s search a ll of its offices and components, w hich are li ke ly to contai n responsi ve records. S. Requ est regard i ng Photographs and other Visual Materi als: I request that any photographs or other visua l materia ls responsi ve to my request be re l eased to m e i n t hei r origi nal or comparable forms, quality, and resoluti on. For exampl e, i f a photograph w as take n digitally, or i f the DOJ com ponents mai ntains. a photograp h d igi tally, I request disclosure of the origi na l d igi ta l image fil e, not a reduced resol uti on vers i on of that image fil e nor a pri ntout and scan of that image file. likew ise, if a photograph was origi nally t aken as a color photograph, I reques.t di sclosure of that photograph as a col or i mage, not a b lack and whi t e im age. Please contact m e for any clari fi cation on thi s poi nt. 6. Request for Duplicate Pages: I request d iscl osure of any and all supposedly "duplicate• pages. Schol ars anal yze reco rds not onl y for the i nformation available on any gi ven page, but a lso for t he re lati onships between that i nformati on and i nformation on pages surroundi ng i t. As such, though certa in pages m ay have been previ ousl y rel eased to m e, the existence of those pages w i t hi n new context renders t hem f unctionally new pages. As such, the only way to properl y anal yze re leased i nformati on i s to anal yze that information w i thi n i ts proper context. Therefore, I requ est d isclosure of all "dupl icate" pages. 7. Request to Search Emails: Please search for e mails re lat i ng to the s.ubje-ct matter of my request. 8. Requ est for Search of Records Trans ferred to Other Agencies: I request that in conducti ng i ts search, the DOJ compon ents disclose re leasable records even if t hey are ava ilable publicly t hroug h other sources outsi de the DOJ components, such as NARA. Document ID : 0.7.12561 .14693-000010 9. Regard i ng Destroyed Records If any records respons ive or potenti ally responsi ve to my request have been destroyed, my request i ncl udes, but i s not limi ted to, any and a ll records rel at i ng or referri ng to the destructi on of those records. Thi s includes, but i s not lim it ed to, any and all re-cords re lating or referring to the events l eading to the destructi on of those records. I NSTRUCTIONS REGARDING SCOPE AND BREADTH OF REQUESTS Please i nterpret the scope of th is request broadly. The DOJ components i s i nstructed to i nterpret the scope of th i s request i n the most liberal manner possi b le short of an interpretati on that wou ld l ead to a conclusi on that the request does not reasonabl y describe th e records sought. EXEMPTIONS AND SEGREGABI LITY I call your attention to President Obama's 21 January 2009 Memorandum concern i ng the Freedom of I nformation Act, i n wh ich he states: All agencies should adopt a presumption i n favor of d i scl osure, in order to renew their comm itment to the pri nci pl es embod ied in FOIA [ ....) The presumption of d i sclosure should be applied to all deci si ons i nvol vi ng FOIA. I n the same Memorandum, Presi dent Obama added that government i niormati on should not be kept con fidentia l Nmerely because public official s might be embarrassed by d i scl osure, because errors and fa ilures m ight be reveal ed, or because of speculati ve or abstract fears.• Fi na lly, President Obama ordered that "The Freedom of I nformati on Act should be admi ni stered w i th a cl ear presumpti on: I n the case of doubt, openn ess prevails." Nonethel ess, if any responsi ve record or porti on thereof i s cl ai med to be exempt from producti on, FOIA/ PA statutes provide that even i f some of the requested materia l i s properl y exempt from mandatory discl osure, all segregable porti ons must be rel eased. If documents are denied i n part or in whol e, p lease speci fy wh ich exempti on(s) i s (are) clai med fo r each passag e or whole document deni ed. Pl ease provid e a comp lete item i zed i nventory and a det ailed factual justification of tota l or parti al deni a l of documents. Specify the number of pages i n each document and the tota l number of pages perta ini ng to thi s request. For "cl assified" material denied, p lease i nclude the following informati on: the cl assi ficati on (confi denti al, secret or top secret); i denti ty of the cl assi fi er; date or event for automati c decl assification or classificati on revi ew or downgrad i ng; i f applicabl e, identity of offici al authori zi ng extensi on of automatic decl assi f icati on or revi ew past si x years; and, i f applicabl e, the reason for extended cl assificat ion beyond si x years. I n excising materia l, pl ease "bl ack out" the materia l rather than "whi te out" or "cut out." I expect, as provi ded by FOIA, that the rema i ni ng non-exempt portions of documents w ill be rel eased. Pl ease re l ease all pages regard less of the extent of exci si ng, even if all that rema ins are the stati onery headi ngs or admi ni strati ve marki ngs. I n addi t ion, I ask that your agency exercise its di screti on to re l ease records wh ich may be techn ically exempt, but where w ithhol di ng seNes no important public i nterest. ADDITIONAL INSTRUCTIONS REGARDI NG REQUEST Pl ease produce all records w i th admini strati ve marki ngs and pagi nation i ncl uded. Pl ease send a memo (copy to m e) to th e appropriate uni ts i n your office to assure that no records related to th i s requ est ;:i,rp 1'11:u;Trn.vPti P IP;::ac;p ;:i;rlui c; P nf ;:anv rh:u ;tnarti nn nf rP·, > Faith called me to check in on this. She said OLA may ask for help in responding to Sen. Whitehouse's letter when it is received. From: Burton, Faith (OLA) Sent: Monday, January 30, 2017 2:37 PM (b) (6) To: Colborn, Paul P (Ol e) • Subject: FW: Whitehouse lettertoAG re EO From: Carr, Peter (OPA) Sent: Monday, January 30, 2017 2:22 PM Document ID: 0.7.12561.11807 > duplicate Document ID: 0112561 .1180? duplicate Document ID: 0112561 .1180? duplicate Document ID: 0112561 .1180? Colborn, Paul P (OLC) From: Colborn, Paul P (OLC) Sent: Monday, January 30, 2017 4:19 PM To: Gannon, Curtis E. (Ole); Koffsky, Daniel L (O LC); Hart, Rosema ry {O LC) Subject: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews Att achments: Letter to DOJ 1-30-17.pdf Importance: High ...iere's the Whitehouse letter that Faith mentioned in the email I recently forwarded. Turns out it is also signed by other SJC Democrats. From: Burton, Faith {OLA) Sent: Monday, January 30, 2017 4:09 PM Document ID: 0.7.12561.11680 ena or on IE louse Subcommittee on Crime Terrorism Senate Committee on the Judiciary 202?228?6659 Document ID: 0.112561 .11580 1:lnitrd ~tatrs ~rnatr WASHINGTON, DC 20510 January 30, 2017 The Honorable Sally Yates Acting Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Dear Acting Attorney General Yates, As members of the Senate Judiciary Committee, we write to express concern about the Department of Justice's ambiguous response to inquiries about the Department's role in reviewing the legality of President Trump's recent executive orders and memoranda. On Friday, the press reported that the Department had "no comment" when asked whether its Office of Legal Counsel (OLC) had reviewed any of the executive orders issued by the new Administration to date. In the vast majority of cases, the answer to this question should be a straightforward "yes." As you are well aware, the Department of Justice's website states that: "All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President's formal approval." In addition, under Executive Order 11030 on the "preparation, presentation, filing, and publication of Executive orders and proclamations," a president ·'shall'' submit proposed executive orders and proclamations to both the Office of Management and Budget and the Attorney General, who reviews the materials for both '·form and legality." Several of the executive orders and memoranda issued this past week, including those relating to deportation priorities and "sanctuary cities," have already been questioned by local law enforcement officials because of their vagueness, negative impact on public safety, and potential conflict with legal precedent. One of them has already been stayed by a Federal court, after causing damage to families around the country and our standing around the globe. The American public has the right to know that the White House is following the longstanding and sensible practice that new mandates affecting their lives and communities have been deemed legal by the Justice Department. If, on the other hand, the Administration has chosen to deviate from these well-established norms, the public has the right to know that, too. Based on our understanding, the President has issued the executive orders and memoranda listed below since January 20th • Given the scope and significance of many of Document ID: 0.7.12561.11680-000001 these, we ask that you provide the following information by no later than February 1, 2017: • • • • • • Identify which orders and memoranda listed below, or issues subsequent to the date of this letter, were reviewed by OLC before they were issued and which were not; Advise whether, to your knowledge, Executive Order 11030 remains in effect. For orders issued through a process that failed to comply with 1 C.F.R. Part 19, advise what legal effect, if any, they have; Advise whether the procedure followed with respect to the executive orders and memoranda listed reflects a change of Department policy or practice and describe what the policy or practice of the Department will be going forward; Advise whether OLC has advised the Department of Homeland Security or any other federal agency on the meaning of any court order staying the President's January 27, 2017, order related to the entry of certain persons into the United States; and Advise whether OLC has advised the Department of Homeland Security or any other federal agency with respect to the legality of failing to comply with court orders related to that executive action. We need an independent Department of Justice to serve as a bulwark against rash and illegal executive actions and flagrant disrespect of our judicial system. It is our hope. and expectation, that the Department will continue to serve this role. Executive Orders: 1. Executive Order: Reducing Regulation and Controlling Regulatory Costs (January 30, 2017) 2. Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States. (January 27, 2017) 3. Executive Order: Border Security and Immigration Enforcement Improvements (January 25, 2017) 4. Executive Order: Enhancing Public Safety in the Interior of the United States (January 25, 2017) 5. Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017) 6. Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal (January 20, 2017) Memoranda: 1. Presidential Memorandum Organization of the National Security Council and the Homeland Security Council (January 28, 2017) 2. Presidential Memorandum Plan to Defeat the Islamic State of Iraq and Syria (January 28, 2017) Document ID: 0.7.12561.11680-000001 3. Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017) 4. Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017) 5. Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017) 6. Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017) 7. Presidential Memorandum Regarding the Hiring Freeze (January 24, 2CM 7) 8. Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement (January 24, 2017) 9. Presidential Memorandum Regarding the Mexico City Policy (January 23, 2017) 10. Memorandum for the Heads of Executive Departments and Agencies (January 20, 2017) Sincerely, ~~¾ United States Senator anne Feinstein United States Senator ~~'fri Patrick Leahy United States Senator Al Franken United States Senator ;l,}4/t:?/4-.& Christopher A. Coons United States Senator ~ .. ./( MazieRono United States Senator Document ID: 0.7.12561.11680-000001 Richard Blumenthal United States Senator Ganno n, Curtis E. (OLC) From: Gannon, Curtis E. (OLC) Sent: Monday, January 30, 2017 6:54 PM To: Koffsky, Daniel L (OLC) Subject: FW: Breaking News: The acting attorney general, an Obama holdover, has ordered the Justice Department not to defend President Trump's immigration order From : Hart, Rosemary (Ole) Sent: Monday, January 30, 2017 6:42 PM (b )(6 ) To: Gannon, Curtis E. (OLC) • Subject: FW: Breaking News: The acting attorney general, an Obama holdover, has ordered the Justice Department not to defend President Trump's immigration order From : NYTimes.com News Alert [mailto:nytd irect@nytimes.com] Sent: Monday, January 30, 2017 6:38 PM (b ) (6) To: Subject: Breaking News: The acting attorney general, an Obama holdover, has ordered the Justice Department not to defend President Trump's immigration order Add nytdirect@nytimes.com to our address book. I January 30, 2017 I NYTimes.com » Breaking News Alert BREAKLUG rm.vs The acting attorney general, an Obama holdover, has ordered the Justice Department not to defend President Trump's immigration order Monday, January 30, 2017 6:32 PM EST The decision is largely symbolic- P resident Trump' s nominee to be attorney general Jeffrey Sessions, is likely to be confirmed soon -but it highlights the deep divide at the Justice Document ID: 0.7.12561.11036 Department and elsewhere in the government over Mr. Trump's order. Read more ~ ~DVEF!TISEMENT 1101111111111111111 FOLLOW l'NTimes OFACEBOOK l:J@NYTime-s Get more NYTimes.com newsletters 11 Get unlimited access to NYTimes.com and our NYTimes apps for just $0 99 Subscribe 11 ABOUT THIS EMAIL Y ou received this message because you signed up for NYTimes.com's Breaking News Alerts newsletter. Unsubscribe Manage Subscriptions Change Y our Email Prrvacy Policy Contact Advertise Copyright 2017The New Y ork Times Company 620 Eighth A venue New Y ork, NY 10018 Document ID: 0.7.12561.11036 Hart, Rosemary (OLC) From: Hart, Rosemary {Ole) Sent: Tuesday, January 31, 2017 9:00 AM To: Gannon, Curtis E. (Ole) Subject: Redlines on Attachments: Copy of 2017) + OlC (114 2017).docx (b) (5) (b)(5 ) . [1-14- Curtis: We received this draft EO from Steve on January 1ih. We sentthis initial redline back on January 14th. Rosemary This e-mail is from Dechert LLP, a law firm, and may contain information that is confidential or privileged.. If you are not the intended recipient, do not read, copy or distnbute the e-mail or any attachments. Instead, please notify the sender and delete the e-mail and any attachments. Thank you. Document ID: 0.7.12561.11058 Colborn, Paul P (OLC) From: Colborn, Paul P (OLC) Sent: Wednesday, February 1, 2017 10:07 AM To: Hart, Rosemary {O LC) Subject: FW: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews Attachments: Letter to OOJ 1-30-17.pdf Importance: High Do you have some time today to talk about how DOJ might respond to this letter? Anyone else you'd like to include in the discussion? Document ID: 0.7.12561.39015 duplicate 1:lnitrd ~tatrs ~rnatr WASHINGTON, DC 20510 January 30, 2017 The Honorable Sally Yates Acting Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, D.C. 20530 Dear Acting Attorney General Yates, As members of the Senate Judiciary Committee, we write to express concern about the Department of Justice's ambiguous response to inquiries about the Department's role in reviewing the legality of President Trump's recent executive orders and memoranda. On Friday, the press reported that the Department had "no comment" when asked whether its Office of Legal Counsel (OLC) had reviewed any of the executive orders issued by the new Administration to date. In the vast majority of cases, the answer to this question should be a straightforward "yes." As you are well aware, the Department of Justice's website states that: "All executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President's formal approval." In addition, under Executive Order 11030 on the "preparation, presentation, filing, and publication of Executive orders and proclamations," a president ·'shall'' submit proposed executive orders and proclamations to both the Office of Management and Budget and the Attorney General, who reviews the materials for both '·form and legality." Several of the executive orders and memoranda issued this past week, including those relating to deportation priorities and "sanctuary cities," have already been questioned by local law enforcement officials because of their vagueness, negative impact on public safety, and potential conflict with legal precedent. One of them has already been stayed by a Federal court, after causing damage to families around the country and our standing around the globe. The American public has the right to know that the White House is following the longstanding and sensible practice that new mandates affecting their lives and communities have been deemed legal by the Justice Department. If, on the other hand, the Administration has chosen to deviate from these well-established norms, the public has the right to know that, too. Based on our understanding, the President has issued the executive orders and memoranda listed below since January 20th • Given the scope and significance of many of Document ID: 0.7.12561.39015-000001 these, we ask that you provide the following information by no later than February 1, 2017: • • • • • • Identify which orders and memoranda listed below, or issues subsequent to the date of this letter, were reviewed by OLC before they were issued and which were not; Advise whether, to your knowledge, Executive Order 11030 remains in effect. For orders issued through a process that failed to comply with 1 C.F.R. Part 19, advise what legal effect, if any, they have; Advise whether the procedure followed with respect to the executive orders and memoranda listed reflects a change of Department policy or practice and describe what the policy or practice of the Department will be going forward; Advise whether OLC has advised the Department of Homeland Security or any other federal agency on the meaning of any court order staying the President's January 27, 2017, order related to the entry of certain persons into the United States; and Advise whether OLC has advised the Department of Homeland Security or any other federal agency with respect to the legality of failing to comply with court orders related to that executive action. We need an independent Department of Justice to serve as a bulwark against rash and illegal executive actions and flagrant disrespect of our judicial system. It is our hope. and expectation, that the Department will continue to serve this role. Executive Orders: 1. Executive Order: Reducing Regulation and Controlling Regulatory Costs (January 30, 2017) 2. Executive Order: Protecting the Nation from Foreign Terrorist Entry into the United States. (January 27, 2017) 3. Executive Order: Border Security and Immigration Enforcement Improvements (January 25, 2017) 4. Executive Order: Enhancing Public Safety in the Interior of the United States (January 25, 2017) 5. Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects (January 24, 2017) 6. Executive Order Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal (January 20, 2017) Memoranda: 1. Presidential Memorandum Organization of the National Security Council and the Homeland Security Council (January 28, 2017) 2. Presidential Memorandum Plan to Defeat the Islamic State of Iraq and Syria (January 28, 2017) Document ID: 0.7.12561.39015-000001 3. Presidential Memorandum Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017) 4. Presidential Memorandum Regarding Construction of the Dakota Access Pipeline (January 24, 2017) 5. Presidential Memorandum Regarding Construction of the Keystone XL Pipeline (January 24, 2017) 6. Presidential Memorandum Regarding Construction of American Pipelines (January 24, 2017) 7. Presidential Memorandum Regarding the Hiring Freeze (January 24, 2CM 7) 8. Presidential Memorandum Regarding Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement (January 24, 2017) 9. Presidential Memorandum Regarding the Mexico City Policy (January 23, 2017) 10. Memorandum for the Heads of Executive Departments and Agencies (January 20, 2017) Sincerely, ~~¾ United States Senator anne Feinstein United States Senator ~~'fri Patrick Leahy United States Senator Al Franken United States Senator ;l,}4/t:?/4-.& Christopher A. Coons United States Senator ~ .. ./( MazieRono United States Senator Document ID: 0.7.12561.39015-000001 Richard Blumenthal United States Senator Colborn, Paul P (OLC) From: Colborn, Paul P (OLC) Sent: Wednesday, February 01, 2017 11:31 AM To: Gannon, Curtis E. (O LC) Subject: RE: OLC involvement with Executive Orders Thanks, Curtis. I'm going to discuss the incoming letter with Rosemary and t hen draft a short response letter for your consideration. Document ID: 0.7.12561.10133 Document ID: duplicate Document ID: Iduplicate Document ID: duplicate Document ID: duplicate Document ID: Kaprove, Jared (OLC) From: Kaprove, Jared (OLC) Sent: Wednesday, February 1, 2017 12:03 PM To: Colborn, Paul P (OLC); Gannon, Curtis E. (OLC} Cc: Hart, Rosemary (OLC); Koffsky, Daniel L (OLC} Subject: RE: FOIA Requests for Form and Legality Memos Nothing more from me. From: Colborn, Paul P {OLC} Sent: Wednesday, February 1, 201711:59 To: Gannon, Curtis E. (OLC) • (b) (6) (b) (6) Cc: Kaprove, Jared (OLC} • >; Hart, Rosemary (OLC) • (b) (6) Daniel L(OLC} , Subject: FOIA Requests for Form and Legality Memos (b) (6) (b) (5) Jared, anything to add? Document ID: 0.7.12561.10107 Koffsky, __ :(o _L_c.. ) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ From: (b) (6 ) (OLC) Sent: Thursday, February 02, 2017 9:49 AM To: Gannon, Curtis E. (OLC) Subject: Emailing: EO.Foreign Terrorist Entry.pdf Attachments: EO.Foreign Terrorist Entry.pdf Document ID: 0.7.12561.9140 U.S. Department of Justice Office of Legal Counsel Office of lhe Assisunt Attorney General Washington. D.C. 20530 January 27, 2017 MEMORANDUM Re: Proposed Executive Order Entitled, "Protecting the Nation from Foreign Terrorist Ent!)' into the United States" The attached proposed Executive Order was prepared by the Domestic Policy Council and forwarded to this Department for review with respect to form and legality. The Order would direct a range of executive branch actions designed to ensure that foreign nationals who are approved for admission to the United States do not intend to harm Americans and have no ties to terrorism. Following is a description of several of the actions directed W1der the Order. The proposed Order would require the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to detennine the infonnation needed from other countries to adjudicate visas, admissions, or other benefits under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1101 et seq. It would then direct the Secretary of State to request that other countries provide such information within 60 days. The Order would direct the Secretary of Homeland Security to submit to the President a list of the countries that do not provide such infonnation for inclusion in a presidential proclamation generally prohibiting the entry of nationals from those coW1tries. The Order would also suspend the entry of immigrants and non-immigrants from countries referred to in section 217(a)(l 2) of the INA, subject to case-by-case exceptions. The Order would also direct the-Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation to develop uniform screening standards and procedures to identify individuals seeking to enter the United States on a fraudulent basis or with the intent to cause harm, or who are at risk of causing harm aft.er admission. In addition, the Order would direct the Secretary of State to suspend the U.S. Refugee Admissions Program ("USRAP,,) for 120 days, subject to case-by-case exceptions. During that 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, would determine what additional procedures can be taken to ensure that refugees who are approved for admission do not pose a threat to the secwity and welfare of the United States. Pursuant to section 212(f) of the INA, the President would proclaim that the entry of Syrian refugees. and the entry of more than 50,000 Document ID: 0.7.12561 .9140-000001 .• refugees in fiscal year 2017, would be detrimental to the interests of the United States and would suspend such admissions. The proposed Order is approved with respect to form and lega.lity. Curtis E. Gannon Acting Assistant Attorney General 2 Document ID: 0.7.12561 .9140-000001 U.S. Department of Justice Office of Legal Counsel Olficc of1hc AssisUnt Attorney General Washington, D.C. 20JJ0 January 27, 2017 The President, The White House. My dear Mr. President: I am herewith transmitting a proposed Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This proposed Order was prepared by the Domestic Policy Council and forwarded to this Department for review of its fonn and legality. The proposed Executive Order is approved with respect to fonn and legality. Respectfully, Curtis E. Gannon Acting Assistant Attorney General Document ID: 0.7.12561 .9140-000001 __ :(o_L_c.. ) _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ From: (b) (6 ) (OLC) Sent: Thursday, February 02, 2017 10:15 AM To: Gannon, Curtis E. (OLC) Subject: Emailing: EO.Foreign Terrorist Entry.pdf Attachments: EO.Foreign Terrorist Entry.pdf Document ID: 0.7.12561.9469 U.S. Department of Justice Office of Legal Counsel Office of Ilic Assi!Lar\t Atiomey General W1W111'/glo11, D.C. 20530 January 27, 2017 MEMORANDUM Re: Proposed Executive Order Entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States" The attached proposed Executive Order was prepared by the Domestic Policy Council and forwarded to this Department for review with respect to fonn and legality. The Order would direct a :range of executive branch actions designed to ensure that foreign nationals who are approved for admission to the United States do not intend to harm Americans and have no ties to terrorism. Following is a description of several of the actions directed under the Order. The proposed Order would require the Secretary of Homeland Security, in consultation with the Secretary of State and the.Director of National Intelligence, to determine the information needed from other countries to adjudicate visas, admissions, or other benefits under the Immigration and Nationality Act ("INA"). 8 U.S.C. §§ 1101 et seq. It would then direct the Secretary of State to request that. other countries provide such information within 60 days. The Order would direct the Secretary of Homeland Security to submit to the President a list of the countrle-s that do not provide such information for inclusion in a presidential proclamation generally prohibiting the entry of nationals from those countries. The Order would also suspend the entry of immigrants and not1.-itnrttlgrant$ from. countries referred to in section 2 I 7(a)(12) of the fNA, subject to case-by-case exceptions. The Order would also direct the Secretary of State) the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau ofinvestigation to develop unifo.rrn screening standards and procedures to identify individuals see.king.to enter the United St.ates on a fraudulent basis or with the intent to cause harm, or who are at risk of causing harm after admission. In addition, lhe Order would ditect the Secretary of State to suspend the U.S.. Refugee Adntlssions Program ("USRAP") for 120 days, subject to case-by-case exceptions. During that 120-d.a.y period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consult.a.don with the Director of National Intelligence, would determine what additional procedures can be taken to ensure that refugees who are approved for admission do not pose a threat to the security and welfare of the United States. Pursuant to section 212(£) of the INA the President would proclaim that the entry of Syrian refugees, and the entry of more 'than 50,000 Document ID: 0.7.12561.9469-000001 refugees in fiscal year 2017, would be detrimental to the interests of the United States and would suspend such admissions. The proposed Order is approved with respect to fonn and legality. Curtis E. Gannon Acting Assistant Attorney General 2 Document ID: 0.7.12561.9469-000001 (' U.S. Department of Justice Office of Legal Counsel Office of the Assiswit Attorney Otntral Wash111gro11, D.C. :JOJJO January 27; 2017 The President. The White House. My dear Mr. President: I am herewith transmitting a proposed Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This proposed Order was prepared by the Domestic Policy Council and forwarded to this Department for review of its form and legality. The proposed Executive Order is approved with tespect to form and legality. Respectfully~ Curtis E. Gannon Acting Assistant Attorney Gene:ral Document ID: 0.7.12561 .9469-000001 Executive Order-Protecting the Nation from Foreign Terrorist Entry into the United States EXECUTIVE ORDER PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act {INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows: Section 1. Purpose. The visa-issuance process plays a cruciaJ role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States. Numerous foreign-born individuals have been convicted or implicated in terrorismrelated crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism. In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not,-admit those who do not support the Constitution, or those who wouJd place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation. Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the 1 Document ID: 0.7.12561 .9469-000001 admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes. Sec. 3. Suspension ofIssuance of Visas and Other Immigration Benefits to Nationals of Countries ofParticular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat. (b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a reJX)rt on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence. (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1 l 82(f), 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.S.C. l 187(a)(12). would be detrimental to the interests ofthe United States, and I hereby suspend entry into the United States, as immigrants and nonimrnigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G4 visas). (d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such infonnation regarding their nationals within 60 days of notification. (e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas>C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs. 2 Document ID: 0.7.12561.9469-000001 (t) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. (g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked. (h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order. Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau oflnvestigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a frauduJent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants~ amended application fonns that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant' s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States. (b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date ofthis order. Sec. 5. Realignment ofthe US Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120~y period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. 3 Document ID: 0.7.12561.9469-000001 Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of~ational Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States. (b) Upon the resumption of USRAP admissions. the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent pennitted by Jaw, to prioriti:ze refugee claims 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 nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization. (c) Pursuant to section 212(f) of the INA, 8 U.S.C. l l82(f), I herebyprodaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the US RAP to ensure that admission of Syrian refugees is consistent with the national interest. (d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(£), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry witil such time as I determine that additional admissions would be in the national interest. (e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determfoe to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest-including when ·the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship-and it would not pose a risk to the security or welfare of the United States. (f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 da,ys of the date of this order and shall submit a second report within 200 days of the date of this order. (g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the 4 Document ID: 0.7.12561.9469-000001 placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement. Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. Th.e Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda. Sec. 7. Expedited Completion ofthe Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States. (b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational. Sec. 8. Visa Interview Security. (a.) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. (b) To the extent permitted by law and subject to the, availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected. Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonirnmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 120I(c) and 1351 , and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent pra.cticable. Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter: 5 Document ID: 0.7.12561 .9469-000001 (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or maternal support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later; (ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism- related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and (iii) information regarding the number and types of acts of gender-bas-ed violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; a:nd (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, includhllg information on the immigration status of foreign nationals charged with major offenses. (b) The Secretary of State shall, within one year of the date of this order, provide a report on tine estimated long-te-nn costs of the USRAP at the Federal, State, and local levels, ,S~c. U. General Provisions. (a) Nothing in this order shall be c-0.nstrued to impair. or otherwise affect: (1) the authority granted by law to an executive department or a.gen.cy, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetaryJ administrative, or legislative proposals, (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, ils officers, employees, or agents, or any other person. 6 Document ID: 0.7.12561 .9469-000001 Gannon, Curtis E. (OLC) From: Gannon, Curtis E. (OLC) Sent: Thursday, February 2, 2017 5:51 PM (b) (6) To: (OLC) Cc: Hart, Rosemary (OLC); Stewart, Scott (OLC) Subject : FW: OLC form-and-legality released Attachments: EO.Foreign Terrorist Entry.pdf FYI: late this afternoon. in response to FOIA requests from media entities (that included requests for expedition). we released the form-and-legality paperwork for the Jan. 27 EO. For context. reporters w ere also told by OPA the following: "The Office of Legal Counsel's form-and~legality paperwork includes a short description of some of the provisions of the proposed ex ecutive order and memorializ es the conclusion that the proposed order is approved with respect to form and legality_ As is generally the case under the Office's longstanding practice, however, it does not identify or contain substantive analy sis of issues that were evaluated in the course of the review.· Document ID: 0.7.12561.8180 U.S. Department of Justice Office of Legal Counsel Office of Ilic Assi!Lar\t Atiomey General W1W111'/glo11, D.C. 20530 January 27, 2017 MEMORANDUM Re: Proposed Executive Order Entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States" The attached proposed Executive Order was prepared by the Domestic Policy Council and forwarded to this Department for review with respect to fonn and legality. The Order would direct a :range of executive branch actions designed to ensure that foreign nationals who are approved for admission to the United States do not intend to harm Americans and have no ties to terrorism. Following is a description of several of the actions directed under the Order. The proposed Order would require the Secretary of Homeland Security, in consultation with the Secretary of State and the.Director of National Intelligence, to determine the information needed from other countries to adjudicate visas, admissions, or other benefits under the Immigration and Nationality Act ("INA"). 8 U.S.C. §§ 1101 et seq. It would then direct the Secretary of State to request that. other countries provide such information within 60 days. The Order would direct the Secretary of Homeland Security to submit to the President a list of the countrle-s that do not provide such information for inclusion in a presidential proclamation generally prohibiting the entry of nationals from those countries. The Order would also suspend the entry of immigrants and not1.-itnrttlgrant$ from. countries referred to in section 2 I 7(a)(12) of the fNA, subject to case-by-case exceptions. The Order would also direct the Secretary of State) the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau ofinvestigation to develop unifo.rrn screening standards and procedures to identify individuals see.king.to enter the United St.ates on a fraudulent basis or with the intent to cause harm, or who are at risk of causing harm after admission. In addition, lhe Order would ditect the Secretary of State to suspend the U.S.. Refugee Adntlssions Program ("USRAP") for 120 days, subject to case-by-case exceptions. During that 120-d.a.y period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consult.a.don with the Director of National Intelligence, would determine what additional procedures can be taken to ensure that refugees who are approved for admission do not pose a threat to the security and welfare of the United States. Pursuant to section 212(£) of the INA the President would proclaim that the entry of Syrian refugees, and the entry of more 'than 50,000 Document ID: 0.7.12561.8180-000001 refugees in fiscal year 2017, would be detrimental to the interests of the United States and would suspend such admissions. The proposed Order is approved with respect to fonn and legality. Curtis E. Gannon Acting Assistant Attorney General 2 Document ID: 0.7.12561 .8180-000001 (' U.S. Department of Justice Office of Legal Counsel Office of the Assiswit Attorney Otntral Wash111gro11, D.C. :JOJJO January 27; 2017 The President. The White House. My dear Mr. President: I am herewith transmitting a proposed Executive Order entitled, "Protecting the Nation from Foreign Terrorist Entry into the United States." This proposed Order was prepared by the Domestic Policy Council and forwarded to this Department for review of its form and legality. The proposed Executive Order is approved with tespect to form and legality. Respectfully~ Curtis E. Gannon Acting Assistant Attorney Gene:ral Document ID: 0.7.12561 .8180-000001 Executive Order-Protecting the Nation from Foreign Terrorist Entry into the United States EXECUTIVE ORDER PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act {INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows: Section 1. Purpose. The visa-issuance process plays a cruciaJ role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States. Numerous foreign-born individuals have been convicted or implicated in terrorismrelated crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism. In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not,-admit those who do not support the Constitution, or those who wouJd place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including "honor" killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation. Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the 1 Document ID: 0.7.12561 .8180-000001 admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes. Sec. 3. Suspension ofIssuance of Visas and Other Immigration Benefits to Nationals of Countries ofParticular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat. (b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a reJX)rt on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence. (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1 l 82(f), 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.S.C. l 187(a)(12). would be detrimental to the interests ofthe United States, and I hereby suspend entry into the United States, as immigrants and nonimrnigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G4 visas). (d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such infonnation regarding their nationals within 60 days of notification. (e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas>C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs. 2 Document ID: 0.7.12561.8180-000001 (t) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. (g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked. (h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order. Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau oflnvestigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a frauduJent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants~ amended application fonns that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of society and the applicant' s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States. (b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date ofthis order. Sec. 5. Realignment ofthe US Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120~y period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. 3 Document ID: 0.7.12561.8180-000001 Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of~ational Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States. (b) Upon the resumption of USRAP admissions. the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent pennitted by Jaw, to prioriti:ze refugee claims 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 nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization. (c) Pursuant to section 212(f) of the INA, 8 U.S.C. l l82(f), I herebyprodaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the US RAP to ensure that admission of Syrian refugees is consistent with the national interest. (d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(£), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry witil such time as I determine that additional admissions would be in the national interest. (e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determfoe to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest-including when ·the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship-and it would not pose a risk to the security or welfare of the United States. (f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 da,ys of the date of this order and shall submit a second report within 200 days of the date of this order. (g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the 4 Document ID: 0.7.12561.8180-000001 placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement. Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. Th.e Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda. Sec. 7. Expedited Completion ofthe Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States. (b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational. Sec. 8. Visa Interview Security. (a.) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions. (b) To the extent permitted by law and subject to the, availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected. Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonirnmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 120I(c) and 1351 , and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent pra.cticable. Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter: 5 Document ID: 0.7.12561 .8180-000001 (i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or maternal support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later; (ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism- related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and (iii) information regarding the number and types of acts of gender-bas-ed violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; a:nd (iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, includhllg information on the immigration status of foreign nationals charged with major offenses. (b) The Secretary of State shall, within one year of the date of this order, provide a report on tine estimated long-te-nn costs of the USRAP at the Federal, State, and local levels, ,S~c. U. General Provisions. (a) Nothing in this order shall be c-0.nstrued to impair. or otherwise affect: (1) the authority granted by law to an executive department or a.gen.cy, or the head thereof; or (ii) the functions of the Director of the Office of Management and Budget relating to budgetaryJ administrative, or legislative proposals, (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, ils officers, employees, or agents, or any other person. 6 Document ID: 0.7.12561 .8180-000001 Hunt, Jody (CIV) From: Hunt, Jody {CIV) Sent: Friday, February 3, 2017 3:24 AM To: Gannon, Curtis E. (OLC) Subject: Washington v. Trump Attachments: 2017.02.02 [050) Defendants' Opposition to TRO.PDF; 2017.02.02 (050-1) Exhibit A - LPR Guidance.pdf Importance: High FYI ... our brief, as filed (attached) Document ID: 0.7.12561.7378 Case 2:17 cv 00141 JLR Document 50 1 Filed 02/02/17 Page 1 of 2 Exhibit A Document ID: 0.7.12561.7378-000001 Case 2:17 cv 00141 JLR Document 50 1 Filed 02/02/17 Page 2 of 2 THE WHITE HOUSE WASHINGTON February 1, 2017 MEMORANDUM TO THE ACTING SECRETARY OF STATE, THE ACTING ATTORNEY GENERAL, AND THE SECRETARY OF HOMELAND SECURITY FROM: Donald F. McGahn II Counsel to the President Authoritative Guidance on Executive Order Entitled “Protecting the Nation from SUBJECT: Foreign Terrorist Entry into the United States” (Jan. 27, 2017) Section 3(c) of the Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017) suspends for 90 days the entry into the United States of certain aliens from countries referred to in section 217(a)(12) of the Immigration and Nationality Act (INA), 8 U.S.C. 1187(a)(12). Section 3(e) of the order directs the Secretary of Homeland Security, in consultation with the Secretary of State, to submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of certain foreign nationals from countries that do not provide information needed to adjudicate visas, admissions, or other benefits under the INA. I understand that there has been reasonable uncertainty about whether those provisions apply to lawful permanent residents of the United States. Accordingly, to remove any confusion, I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order. 1 Document ID: 0.7.12561.7378-000001 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 1 of 34 1 The Honorable James L. Robart 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 8 STATE OF WASHINGTON and STATE OF MINNESOTA, 9 10 No. 2:17-cv-00141 (JLR) Plaintiffs, 11 12 v. 13 DONALD 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 the Department of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; 1 and the UNITED STATES OF AMERICA, 14 15 16 17 18 DEFENDANTS’ OPPOSITION TO PLAINTIFF STATE OF WASHINGTON’S MOTION FOR TEMPORARY RESTRAINING ORDER Noted For Consideration: February 3, 2017 Defendants. 19 20 21 22 23 24 25 26 27 1 28 Rex W. Tillerson, Secretary of State, has been substituted for Tom Shannon pursuant to Federal Rule of Civil Procedure 25(d). DEFENDANTS’ OPPOSITION TO PLAINTIFF STATE OF WASHINGTON’SMOTION FOR TEMPORARY RESTRAINING ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 2 of 34 1 2 3 4 TABLE OF CONTENTS INTRODUCTION ........................................................................................................................ 1 BACKGROUND .......................................................................................................................... 3 I. The Immigration and Nationality Act ........................................................................ 3 II. Presidential Authority Over Foreign Affairs and National Security .......................... 5 III. The President’s Executive Order of January 27, 2017 ............................................... 6 5 6 7 8 9 10 STANDARD OF REVIEW.......................................................................................................... 8 ARGUMENT ............................................................................................................................... 9 I. The State Lacks Standing to Invoke the Court’s Jurisdiction .................................... 9 11 A. The State Lacks Standing on Its Own Behalf....................................................... 9 12 B. The State Cannot Bring a Parens Patriae Action Here ..................................... 12 13 II. 14 The State Does Not Demonstrate It Is Likely to Prevail on the Merits.................... 14 A. The Executive Order Is a Valid Exercise of Congress’ Broad Delegation of Authority to the President, and His Own Constitutional Powers ................... 14 B. This Court Cannot, and Need Not, Review the President’s National Security Determinations Underlying the Executive Order................................. 19 C. The State’s Facial Constitutional Challenges Fail.............................................. 23 15 16 17 18 19 20 III. The State Has Made No Showing of Irreparable Harm ........................................... 26 IV. The Balance of the Equities and the Public Interest Mandate Against a Temporary Restraining Order................................................................................... 28 V. Any Relief Entered Must Be Limited in Scope to the Plaintiff State and to the Specific Harm Found .......................................................................................... 30 21 22 23 CONCLUSION .......................................................................................................................... 30 24 25 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - i State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 3 of 34 1 INTRODUCTION 2 3 A provision of the Immigration and Nationality Act (INA) titled “Suspension of entry or imposition of restrictions by President,” 8 U.S.C. § 1182(f), authorizes the President to “suspend 4 5 6 the entry of . . . any class of aliens” whenever the President determines their entry “would be detrimental to the interests of the United States[.]” Invoking that authority, on January 27, 2017, 7 the President issued an Executive Order titled “Protecting the Nation from Foreign Terrorist 8 Entry into the United States.” See ECF No. 1-7. The Executive Order’s purpose is “to protect 9 10 the American people from terrorist attacks by foreign nationals admitted to the United States,” id. pmbl., and as pertinent here it directs the following actions: 11 • a 90-day suspension of entry for individuals from certain countries, during which time the Secretary of Homeland Security and other officials must review whether the United States has adequate information to determine that an individual seeking an immigration benefit “is not a security or public-safety threat,” see id. § 3(a), (c); • a 120-day suspension of the U.S. Refugee Admissions Program (“USRAP” or “refugee program”), during which time the Secretary of State and other officials must “review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures,” see id. § 5(a); and • 20 a suspension of entry of Syrian nationals as refugees, until such time as the President determines “that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest,” see id. § 5(c). 21 The Executive Order also contains waiver provisions permitting exceptions from some of these 22 actions. See, e.g., id. §§ 3(g), 5(e). 12 13 14 15 16 17 18 19 23 24 Despite this plain congressional authorization to the President to make determinations regarding national security and the admissibility of aliens, the State of Washington (hereafter, 25 26 “the State”) requests entry of a temporary restraining order prohibiting enforcement nationwide 27 of the President’s Executive Order. See Proposed Order (ECF No. 3-1) at 3 ¶ 2. The State does 28 so despite the heavy burden it carries to justify such an “extraordinary remedy,” particularly DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 1 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 4 of 34 1 2 3 where the remedy would interfere with Congress’ determination that it is the President, not a court or a single state, that should make the relevant judgments over national security and foreign affairs. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 22, 25-26 (2008). 4 At the outset, the State’s motion for a temporary restraining order (ECF No. 3, hereafter 5 6 “TRO Mot.”) overlooks whether the State even has standing to pursue its claims. It is well- 7 established that a state cannot sue the Federal Government on a parens patriae theory. And the 8 State’s attempts to manufacture standing in its own right 9 10 reputational injury to its universities Article III. i.e., through lost tax revenues, or are not concrete, particularized harms cognizable under Many of the State’s claimed harms, moreover, simply do not exist. Most 11 12 significantly, the State cannot rely on injuries to lawful permanent residents (“LPRs”), as it seeks 13 to do, in light of guidance from the White House clarifying that the 90-day suspension of entry 14 does not apply to those individuals. 1 15 16 The State’s claims likewise fails on the merits. Congress has “plenary power” over the admission and exclusion of aliens, Kleindienst v. Mandel, 408 U.S. 753, 766 (1972), and here 17 expressly has delegated to the President the broad power to suspend entry “of any class of aliens 18 19 into the United States.” 8 U.S.C. § 1182(f). The President’s exercise of his Section 1182(f) 20 authority is committed to his discretion by law, and thus judicial review is precluded. Moreover, 21 that delegation, combined with the President’s own Article II powers in this realm, placed the 22 23 President at the apex of his authority when issuing the Executive Order. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J., concurring). The Order was well 24 25 26 within the President’s authority under Congress’ delegation, particularly in an area, like immigration, in which the admission to the United States of foreign aliens is subject to plenary 27 1 28 See Memorandum from Donald F. McGahn II, Counsel to the President (Feb. 1, 2017) (filed herewith as Exhibit A) (hereafter “Feb. 1, 2017 Memorandum”). DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 2 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 5 of 34 1 2 3 control by the political branches. See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is 4 5 6 a sovereign prerogative.”). In light of these principles, the State’s claims on the merits cannot succeed, for they would force this Court to override the plenary power of the political branches 7 to determine which aliens should be admitted into this Nation’s borders according to those 8 branches’ assessments of the foreign policy and national security interests of the United States. 9 10 Indeed, the State’s likelihood of success faces a particularly insurmountable barrier because the State is bringing a facial challenge to the Executive Order. To prevail on its facial 11 12 challenge, the State must prove that the Executive Order is unconstitutional in all (or at least 13 most) of its applications. It cannot do so. At a minimum, because there are unquestionably a 14 significant number of lawful applications of the Executive Order 15 unadmitted aliens 16 e.g., to non-resident the State’s facial challenge necessarily must fail. Nor can the State sustain its other burdens. The State’s claimed irreparable harm is vague 17 and abstract, and certainly not occurring with the immediacy necessary to warrant a temporary 18 19 restraining order (i.e., within the coming days or weeks). The balance of the equities and the 20 public interest also decisively favor the United States, given that the State’s requested relief 21 would interfere with the President’s exercise of plenary power delegated by Congress. As these 22 factors, like the merits, weigh squarely against judicial relief, the State’s motion should be denied. 23 BACKGROUND 24 25 26 27 I. THE IMMIGRATION AND NATIONALITY ACT The Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. §§ 1101 et seq., as amended, provides the legal framework under which Congress has exercised and delegated its 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 3 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 6 of 34 1 2 3 constitutional authority to determine who is permitted to enter the United States, who is permitted to remain in the United States, and for what reasons persons may be admitted to or removed from the United States. Central to the Court’s consideration of the issues before it is Section 212(f) of 4 5 6 the INA, 8 U.S.C. § 1182(f), which provides broad authority to the President to suspend or impose restrictions on the entry of aliens into the United States: 10 (f) Suspension of entry or imposition of restrictions by President Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. . . . 11 Every President over the last thirty years has invoked this authority to suspend or impose 12 restrictions on the entry of certain aliens or classes of aliens, 2 in some instances including 7 8 9 13 classifications based on nationality. For example, in 1986, President Reagan (through 14 15 16 Presidential Proclamation 5517) invoked section 212(f) to suspend entry of Cuban nationals as immigrants into the United States, subject to certain exceptions. See Suspension of Cuban 17 Immigration, 1986 WL 796773 (Aug. 22, 1986). 18 Presidential Proclamation 6958) invoked section 212(f) to suspend entry, subject to certain 19 20 In 1996, President Clinton (through exceptions, of members of the Government of Sudan, officials of that Government, and members of the Sudanese armed forces as immigrants or nonimmigrants into the United States. See 21 22 23 Suspension of Entry as Immigrants and Nonimmigrants of Persons Who Are Members or Officials of the Sudanese Government or Armed Forces, 1996 WL 33673860 (Nov. 22, 1996). 24 25 2 26 27 28 See, e.g., Presidential Proclamation 5517 (President Reagan); Exec. Order No. 12,324 (President Reagan); Exec. Order No. 12,807 (President George H.W. Bush); Presidential Proclamation 6958 (President Clinton); Presidential Proclamation 8342 (President George W. Bush); Presidential Proclamation 8693 (President Obama); Exec. Order No. 13,694 (President Obama); Exec. Order No. 13,726 (President Obama). The Department of States maintains a list of Section 212(f) Presidential Proclamations that currently affect the issuance of United States visas at https://travel.state.gov/content/visas/en/fees/presidential proclamations.html. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 4 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 7 of 34 1 2 3 Congress likewise has expressly drawn distinctions based on nationality. For example, in 2015, Congress amended the INA to exclude certain individuals from a visa waiver program (i.e., the ability to enter the United States as a nonimmigrant without a visa) on the basis of 4 5 6 nationality. 3 See Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, 129 Stat. 2242, 2990 (2015) (codified at 8 U.S.C. § 1187(a)(12)). Congress expressly excluded nationals of Iraq 7 and Syria from the program, see 8 U.S.C. § 1187(a)(12)(A)(ii), and created a process by which 8 the Secretary of Homeland Security could designate additional “Countries or areas of concern,” 9 10 for exclusion of a country’s nationals. See id. § 1187(a)(12)(D). As of February 2016, the exclusion applied to nationals of Iraq and Syria (pursuant to the statute’s plain text), as well as 11 12 nationals of Iran, Sudan, Libya, Somalia, and Yemen (pursuant to Executive Branch designations 13 under the statutory scheme). 14 Restrictions for the Visa Waiver Program (Feb. 18, 2016). 4 These seven countries excluded 15 from the visa waiver program are the same seven countries that are covered by Section 3 of the 16 See Dep’t of Homeland Sec., DHS Announces Further Travel President’s January 27, 2017 Executive Order. See Executive Order § 3(c) (incorporating by 17 reference “countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12)”). 18 19 II. PRESIDENTIAL AUTHORITY OVER FOREIGN AFFAIRS AND NATIONAL SECURITY 20 These delegations of authority to deny entry to certain classes of aliens, based on the 21 President’s findings regarding the national interest, fall in the heartland of (and are bolstered by) 22 23 3 24 25 26 27 28 The INA sets out several terms of art. An “alien” is any person who is neither a citizen nor a national of the United States. See 8 U.S.C. § 1101(a)(3). A “nonimmigrant” is an alien admitted to the United States on a temporary basis, with one of the visa categories established for particular purposes under 8 U.S.C. § 1101(a)(15). On the other hand, an “immigrant” is an individual who is permitted to stay in the United States on a permanent basis. Within the category of “immigrant,” an individual may be admitted with the privilege of residing permanently in the United States, thereby acquiring LPR status. See 8 U.S.C. § 1101(a)(20). LPRs are authorized to work in the United States, as are some aliens temporarily admitted pursuant to certain nonimmigrant categories. See generally 8 C.F.R. § 274a.12 (Classes of aliens authorized to accept employment). 4 https://www.dhs.gov/news/2016/02/18/dhs announces further travel restrictions visa waiver program DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 5 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 8 of 34 1 2 3 the President’s broad authority under Article II relating to foreign affairs and national security. See U.S. Const., art. II, § 2 (“Commander in Chief” power, and authority to “make treaties” and “appoint ambassadors”), § 3 (power to “receive ambassadors”). As the Supreme Court 4 5 6 repeatedly has held, Article II confers upon the President expansive authority over foreign affairs, national security, and immigration. See Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950) (“The 7 exclusion of aliens is a fundamental act of sovereignty . . . inherent in the executive power to 8 control the foreign affairs of the nation.”); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 9 10 304, 320 (1936) (discussing “the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations a power which 11 12 13 14 15 16 does not require as a basis for its exercise an act of Congress”). III. THE PRESIDENT’S EXECUTIVE ORDER OF JANUARY 27, 2017 Invoking these constitutional and statutory authorities, on January 27, 2017, the President issued an Executive Order titled: “Protecting the Nation from Foreign Terrorist Entry into the United States.” See ECF No. 1-7, also available at 2017 WL 394075. The Executive Order is 17 intended “to protect the American people from terrorist attacks by foreign nationals admitted to 18 19 the United States.” Executive Order § 2. 20 To accomplish this purpose, the Executive Order directs a number of actions. See id. 21 §§ 2-11. First, Section 3 of the Executive Order directs the Secretary of Homeland Security (in 22 23 consultation with other Executive Branch officials) to immediately conduct a review to identify the “information needed from any country . . . to determine that [an] individual seeking [an 24 25 26 27 immigration-related] benefit is who the individual claims to be and is not a security or publicsafety threat.” Id. § 3(a). The Secretary must, within 30 days of the Executive Order, “submit to the President a report on the results of the review,” as well as “a list of countries that do not 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 6 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 9 of 34 1 2 3 provide adequate information[.]” Id. § 3(b). During the next 60 days, the Executive Order directs a process for requesting necessary information from foreign governments that do not supply such information, and consequences for countries not providing the information. See id. § 3(d)-(f). 4 5 6 While this review is ongoing, the Executive Order, pursuant to section 212(f) of the INA, suspends entry for 90 days of aliens from the seven countries covered by 8 U.S.C. § 1187(a)(12). 7 Id. § 3(c). 8 Secretaries of State or Homeland Security. Id. § 3(g). The suspension of entry in Section 3(c) 9 10 During this period, exceptions may be made (on a case-by-case basis) by the does not apply to lawful permanent residents of the United States. See Feb. 1, 2017 Memorandum (Exhibit A). 11 12 The Executive Order also suspends the U.S. Refugee Admissions Program for 120 days, 13 while the Secretary of State (in conjunction with other Executive Branch officials) reviews “the 14 USRAP application and adjudication process to determine what additional procedures should be 15 taken to ensure that those approved for refugee admission do not pose a threat to the security and 16 welfare of the United States,” and then “implement[s] such additional procedures.” Executive 17 Order § 5(a). Upon resumption of the refugee program i.e., no sooner than 120 days after 18 19 issuance of the Executive Order the Order directs the Secretary of State to “make changes, to 20 the extent permitted by law, to prioritize refugee claims made by individuals on the basis of 21 religious-based persecution, provided that the religion of the individual is a minority religion in 22 23 the individual’s country of nationality.” Id. § 5(b). Again, during the 120-day suspension of the refugee program, the Executive Order allows the Secretaries of State and Homeland Security to 24 25 26 27 permit entry of individual refugees on a case-by-case basis. Id. § 5(e). Finally, notwithstanding the general resumption of the refugee program after 120 days, the Executive Order directs, pursuant to Section 212(f), a suspension of entry of nationals of 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 7 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 10 of 34 1 2 3 Syria as refugees based upon the President’s finding that such entry “is detrimental to the interests of the United States.” Id. § 5(c). Such suspension will continue until such time as the President determines “that sufficient changes have been made to the USRAP to ensure that admission of 4 5 Syrian refugees is consistent with the national interest.” Id. STANDARD OF REVIEW 6 7 8 9 10 A temporary restraining order is “an extraordinary and drastic remedy[.]” Munaf v. Geren, 553 U.S. 674, 689 (2008). A party seeking such relief “must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that [a temporary restraining order] is in 11 12 the public interest.” Winter v. NRDC, 555 U.S. 7, 20 (2008). Further, injunctive relief that would 13 “deeply intrude[] into the core concerns of the executive branch” 14 national security 15 showing” as to each element. Adams v. Vance, 570 F.2d 950, 954-55 (D.C. Cir. 1978); see 16 such as foreign affairs and may be awarded only where the plaintiff “make[s] an extraordinarily strong Winter, 555 U.S. at 32-33. 17 The State raises only facial challenges to the Executive Order, which are “the most 18 19 difficult challenge[s] to mount successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987). 20 To demonstrate that it is likely to prevail on the merits, the State must show more than that the 21 Executive 22 23 Order “might operate unconstitutionally under some conceivable set of circumstances.” Id. Instead, the State bears the “heavy burden” of “establish[ing] that no set of circumstances exist under which the [Executive Order] would be valid.” Id.; see also Puente 24 25 Arizona v. Arpaio, 821 F.3d 1098, 1104 (9th Cir. 2016). 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 8 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 11 of 34 1 2 ARGUMENT I. 3 THE STATE LACKS STANDING TO INVOKE THE COURT’S JURISDICTION The State of Washington pursues two theories of standing. First, it purports to sue on its 4 5 6 7 own behalf, alleging various injuries to its “proprietary interests.” Pl.’s Supp. Br. at 2-3 (ECF No. 17). Second, it seeks to bring a parens patriae action on behalf of its residents. Id. at 3-5. Neither theory satisfies the State’s burden to demonstrate standing. 8 A. 9 10 The State Lacks Standing on Its Own Behalf In some circumstances, a state may have standing to challenge federal action that threatens its own distinct interests. As with any other party, however, the harm to the state’s 11 12 interests must be “an invasion of a legally protected interest” that is “concrete and particularized” 13 and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S. 14 555, 560-61 (1992). A state suffers a cognizable injury when, for example, its physical territory 15 such as its “coastal land” is harmed. See Massachusetts v. EPA, 549 U.S. 497, 522-23 (2007). 16 A state likewise may challenge a measure commanding the state itself to act, see New York v. 17 United States, 505 U.S. 144 (1992) (standing to challenge federal law requiring State to take title 18 19 to nuclear waste or enact federally-approved regulations), or that prohibits it from acting, see 20 Oregon v. Mitchell, 400 U.S. 112 (1970) (standing to challenge federal law barring literacy-test 21 or durational-residency requirements in elections and requiring State to enfranchise 18-year- 22 23 olds). The State’s allegations of harm here are insufficient to establish Article III standing. 24 25 26 27 Most fundamentally, the State’s allegations of standing rely on downstream, incidental effects stemming from the Federal Government’s regulation of immigration as to third-party aliens. The State has no legally cognizable interest in ensuring that the Federal Government issue any 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 9 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 12 of 34 1 2 3 particular alien any particular visa or admit any particular alien into the United States. The State’s conception of standing miscomprehends the Nation’s constitutional structure: under our federal system of separate sovereigns, a State has no legally protected interest in avoiding indirect 4 5 6 and incidental consequences (allegedly) flowing from the United States’ regulation of individuals’ conduct pursuant to the powers vested in the Federal Government by the 7 Constitution. And it would be especially inconsistent with the constitutional structure to allow 8 such claims to proceed when they involve immigration, which is a subject uniquely committed 9 10 to the Federal Government, and in which the State has no role. See Arizona v. United States, 132 S. Ct. 2492, 2502 (2012) (“The federal power to determine immigration policy is well settled.”). 11 12 13 Thus, the State’s incidental, indirect injuries from federal immigration policies simply cannot establish standing here. 14 Even so, the State’s alleged harms are neither concrete nor particularized. The State first 15 asserts that it will “lose . . . tax revenue” from tourists who, absent the Executive Order, would 16 visit the State and purchase goods and services there. Pl.’s Supp. Br. at 2; Decl. of Kathy Oline, 17 ECF No. 17-1. But allegations of a reduction in a State’s tax revenues (particularly where, as 18 19 here, there is no “direct link between the state’s status as a collector and recipient of revenues 20 and the . . . action being challenged”) is a “generalized grievance about the conduct of 21 government,” not the sort of particularized injury necessary to establish standing. Pennsylvania 22 23 v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976) (rejecting similar allegations by analogy to taxpayer standing cases); see Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (rejecting standing 24 25 26 27 despite Florida’s allegation that challenged federal law would induce citizens to remove property from the state thereby diminishing the state’s tax revenues); Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985) (concluding state lacked standing despite claim that challenged 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 10 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 13 of 34 1 2 3 action would “forc[e] unemployment up and state tax revenues down”). Were the Court to find standing based on incidental impacts to the State’s treasury without any direct link to the action challenged, virtually any change in federal policy could prompt an Article III dispute, which is 4 5 6 an approach to standing the Supreme Court decisively has rejected. See DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006); Kleppe, 533 F.2d at 672. 5 The State next claims that the “mission” of various state universities and “their 7 8 9 10 attractiveness to international students” may be “damage[d]” because some students and faculty members may be prevented from attending the universities or from travelling abroad for research. Pl.’s Supp. Br. at 3. This argument fails for two reasons. First, most (if not all) of the students 11 12 and faculty members the State identifies are not actually prohibited from entering the United 13 States, and others’ alleged difficulties are hypothetical or speculative. 6 That is particularly true 14 given the waiver authority granted to the Secretaries of Homeland Security and State under the 15 Executive Order when entry of an alien would be in the national interest. See Executive Order 16 §§ 3(g), 5(e). And second, even if the State could piggyback on these individuals to establish an 17 injury to the State itself, the State’s assertions of injury are too abstract. See Whitmore v. 18 19 Arkansas, 495 U.S. 149, 155 (1990). Vague allegations about the universities’ reputations and 20 ability to attract students are not sufficiently concrete to show standing. The State’s reliance on 21 Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480 (9th Cir. 1995), see Pl.’s Supp. Br. at 3 n.3, 22 is inapposite. The school’s injury in that case was that it had been terminated from the 23 24 25 26 27 28 5 City of Sausalito v. O’Neill, 386 F.3d 1186 (9th Cir. 2004), see Pl.’s Supp. Br. at 2, is not to the contrary. In that case, there was a direct link between the challenged construction project and the alleged injury to the adjacent City’s natural resources, aesthetic, and economy. See O’Neill, 386 F.3d at 1199. 6 See, e.g., Second Riedinger Decl. ¶¶ 3 7, ECF No. 17 2 (allegations about lawful permanent residents, who are not impacted by the Executive Order); Boesenberg Decl. ¶ 6, ECF No. 17 3 (same); Second Riedinger Decl. ¶ 8 (asserting that certain countries may “ban . . . U.S. travelers” in response to the Executive Order); Second Chaudhry Decl. ¶ 8, ECF No. 17 4 (alleging one faculty member may not be able to return to the university at a future date). DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 11 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 14 of 34 1 2 3 defendant’s loan guarantee program, id. at 1483, not that its reputation or attractiveness to students had been incidentally diminished by some action that did not directly affect the school. Additionally, the State asserts that it “expects” the Executive Order will have effects on 4 5 6 its agency recruitment efforts and its child welfare system. Pl.’s Supp. Br. at 3 n.4. But the State concedes that it cannot identify any State agency employees that are currently affected by the 7 Executive Order, see Schumacher Decl. ¶ 7, ECF No. 17-5, nor any specific and actual impact 8 on its child welfare system, see Strus Decl., ECF No. 17-6. Speculation about possible future 9 10 events does not constitute an injury in fact. Whitmore, 495 U.S. at 158. Finally, the State cites no case recognizing the standing of a state government to bring an 11 12 Establishment Clause challenge, and it is not clear how a state can suffer “spiritual or 13 psychological harm” or have “religious beliefs” that can be “stigmatized.” Catholic League for 14 Religious & Civil Rights v. City & Cty. of San Francisco, 624 F.3d 1043, 1051-52 (9th Cir. 2010). 15 16 B. The State Cannot Bring a Parens Patriae Action Here The State cannot convert its political dispute with the Federal Government into a legal 17 claim through the vehicle of a parens patriae suit brought on behalf of its residents. The Supreme 18 19 Court made clear more than eighty years ago that a state cannot bring a parens patriae action 20 against federal defendants. See Massachusetts v. Mellon, 262 U.S. at 485-86. In dismissing an 21 action brought by Massachusetts to exempt its citizens from a federal statute designed to “protect 22 23 the health of mothers and infants,” the Court explained that the citizens of a state “are also citizens of the United States,” and therefore “[i]t cannot be conceded that a state, as parens patriae, may 24 25 26 institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof.” Id. at 479, 485. “[I]t is no part of [a state’s] duty or power to enforce [its 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 12 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 15 of 34 1 citizens’] rights in respect of their relations with the federal government;” “it is the United States, 2 and not the state, which represents [its citizens] as parens patriae.” Id. at 485-86. 7 3 Contrary to the State’s assertion, the “special solicitude” for states referred to in 4 5 6 Massachusetts v. EPA, 549 U.S. 497, 520 (2007), did not “eradicate[]” the bar on parens patriae actions against the Federal Government, Pl.’s Supp. Br. at 4 n.5. Indeed, Massachusetts 7 recognized that Mellon “prohibits” allowing a state “‘to protect her citizens from the operation 8 of federal statutes.’” Massachusetts, 549 U.S. at 520 n.17; see also Del. Dep’t of Nat. Res. & 9 10 Envtl. Control v. FERC, 558 F.3d 575, 579 n.6 (D.C. Cir. 2009) (Massachusetts “does not eliminate the state [plaintiff’s] obligation to establish a concrete injury, as Justice Stevens’ 11 12 opinion amply indicates”). The special solicitude afforded in Massachusetts was based on the 13 “unique circumstances” of that case, Ctr. for Biological Diversity v. U.S. Dep’t of Interior, 563 14 F.3d 466, 476 (D.C. Cir. 2009), wherein Massachusetts sought to assert its own rights to ensure 15 the protection of the land and air within its “sovereign territory,” which was protected by a special 16 “procedural right.” 549 U.S. at 519-20; see id. at 522-23 (explaining that Massachusetts “owns 17 a substantial portion of the state’s coastal property” that was harmed by EPA’s inaction). Here, 18 19 the State’s interest in protecting its territorial sovereignty is not at issue, and the State has 20 identified no other injury to any legally protected rights. Moreover, Congress has not created 21 any protection for states against the incidental impacts asserted by the State here. 8 Because a 22 23 24 25 26 27 28 7 The Supreme Court has repeatedly applied this principle since Mellon to dismiss actions brought by a state as parens patriae against federal defendants. See Florida, 273 U.S. at 18 (relying on Mellon to dismiss Florida’s challenge to a federal inheritance tax based on alleged injury to its citizens); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) (concluding South Carolina lacked standing as parens patriae to invoke the Due Process Clause or the Bill of Attainder Clause against the Federal Government); see also Snapp, 458 U.S. at 610 n.16 (“A State does not have standing as parens patriae to bring an action against the Federal Government.”). 8 The generic cause of action under the Administrative Procedure Act, 5 U.S.C. § 702, is no substitute for the necessary conditions for standing in Massachusetts. See Pl.’s Supp. Br. at 4 n.5. It would have made little sense for the Supreme Court to attach “critical importance” to Congress’s creation of a particular procedural right, Massachusetts, 549 U.S. at 516, if the APA already made that right available generally. The State’s reliance on the DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 13 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 16 of 34 1 2 3 state cannot bring a parens patriae suit against federal defendants, the State lacks standing and thus the Court should deny the State’s motion for lack of jurisdiction. II. THE STATE DOES NOT DEMONSTRATE IT IS LIKELY TO PREVAIL ON THE MERITS 4 5 6 The State falls far short of carrying its “heavy burden” to demonstrate that it is likely to prevail on the merits of its facial challenge by “establish[ing] that no set of circumstances exist 7 under which the [Executive Order] would be valid.” Salerno, 481 U.S. at 745. To the contrary, 8 the Executive Order fits within the express delegation of authority in Section 212(f). The State’s 9 constitutional and statutory claims additionally fail pursuant to their individual elements. 10 A. The Executive Order Is a Valid Exercise of Congress’ Broad Delegation of 11 Authority to the President, and His Own Constitutional Powers 12 13 The Executive Order was issued pursuant to Congress’ broad delegation of authority to 14 the President to “suspend the entry of all aliens or any class of aliens as immigrants or 15 nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.” 16 8 U.S.C. § 1182(f). The express delegation from Congress, coupled with the President’s own 17 Article II powers over foreign affairs and national security, mean that the President’s “authority 18 19 is at its maximum, for it includes all that he possesses in his own right plus all that Congress can 20 delegate.’” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015) (quoting 21 Youngstown, 343 U.S. at 635 (Jackson, J., concurring)). 22 23 Indeed, in the immigration context specifically, “[t]he Supreme Court has ‘long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised 24 25 26 by the Government’s political departments largely immune from judicial control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting Fiallo v. Bell, 430 U.S. 787, 792 27 28 Religious Freedom Restoration Act, 42 U.S.C. § 2000bb 1, also is unavailing, as that statute only provides a cause of action for persons that exercise religion. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 14 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 17 of 34 1 2 3 (1977)). “Congress has ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’” Cardenas, 826 F.3d at 1169 (quoting Kleindienst v. Mandel, 408 U.S. 753, 769 (1972)). “When Congress delegates this 4 5 6 plenary power to the Executive, the Executive’s decisions are likewise generally shielded from administrative or judicial review.” Cardenas, 826 F.3d at 1169. And “[i]n the exercise of its 7 broad power over naturalization and immigration, Congress regularly makes rules that would be 8 unacceptable if applied to citizens.” Mathews v. Diaz, 426 U.S. 67, 79-80 (1976). 9 9 10 Here, the President’s Executive Order falls squarely within the express delegation of power granted him under Section 212(f) of the INA, codified at 8 U.S.C. § 1182(f). “[T]hat 11 12 statute specifically grants the President, where it is in the national interest to do so, the extreme 13 power to prevent the entry of any alien or groups of aliens into this country as well as the lesser 14 power to grant entry to such person or persons with any restriction on their entry as he may deem 15 to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980); Haitian 16 Refugee Ctr., Inc. v. Baker, 953 F.2d 1498, 1507 (11th Cir. 1992) (“8 U.S.C. § 1182(f) clearly 17 grants the President broad discretionary authority to control the entry of aliens into the United 18 19 States.”). 10 Presidents, moreover, repeatedly have exercised authority under Section 212(f) to 20 21 suspend entry of certain aliens or classes of aliens, and at least twice have drawn distinctions 22 23 9 24 25 26 27 28 As an example of the judicial deference in this area, under the long established doctrine of consular non reviewability, a non resident alien outside the United States has no right to judicial review of a consular officer’s denial of a visa. See Capistrano v. Dep’t of State, 267 F. App’x 593, 594 (9th Cir. 2008) (“The doctrine of consular nonreviewability predates the founding of our Republic” and “prevents [courts] from reviewing decisions reached by consular officials regarding the entry of visa applicants.”). 10 In several other statutory provisions, Congress delegated authority to the Secretaries of Homeland Security and State to, in their sole discretion, revoke visas or visa petitions. See 8 U.S.C. §§ 1155, 1201(i); see also Bernardo ex rel. M & K Eng’g, Inc. v. Johnson, 814 F.3d 481, 484 (1st Cir. 2016) (describing the unreviewability of such revocations). DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 15 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 18 of 34 1 2 3 based on nationality. See Background, Section II.A. For example, in 1986, the President invoked Section 212(f) to suspend entry of Cuban nationals as immigrants into the United States, and in 1996, the President did something similar for Sudanese government officials. And with respect 4 5 6 to Executive Order 12,807 by sea which, among other things, suspended entry of undocumented aliens the Supreme Court found “[i]t is perfectly clear that 8 U.S.C. § 1182(f) . . . grants the 7 President ample power to establish a naval blockade that would simply deny illegal Haitian 8 migrants the ability to disembark on our shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 9 10 155, 164 n.13, 187 (1993) (emphasis added). There can be little doubt, therefore, that 8 U.S.C. § 1182(f) authorizes the President to suspend the entry of classes of immigrants on the basis of 11 12 nationality where, as here, the President has determined that their entry would be “detrimental to 13 the interests of the United States.” And it is thus untenable for the State to contend that, for 14 countries that present a national-security risk to the United States 15 State Department, and DHS 16 as judged by Congress, the the President lacks the authority to pause the entry of aliens from those countries. 17 Indeed, courts repeatedly have confirmed that “[d]istinctions on the basis of nationality 18 19 may be drawn in the immigration field by the Congress or the Executive.” Narenji v. Civiletti, 20 617 F.2d 745, 747 (D.C. Cir. 1979). “In view of the Supreme Court’s repeated emphasis on the 21 concurrent nature of executive and legislative power in this area and the sweeping congressional 22 23 delegations of discretionary authority to the Executive under the INA, there is little question that the Executive has the power to draw distinctions among aliens on the basis of nationality.” Jean 24 25 26 v. Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846 (1985). “[C]lassifications on the basis of nationality are frequently unavoidable in immigration matters,” 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 16 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 19 of 34 1 2 including because “the very concept of ‘alien’ is a nationality-based classification.” Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008). 3 Despite this wealth of authority, the State asserts that the President’s authority under 4 5 6 Section 212(f) is limited by 8 U.S.C. § 1152(a)(1)(A), another provision of the INA stating that, with certain exceptions, 11 “no person shall receive any preference or priority or be discriminated 7 against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place 8 of birth, or place of residence.” See TRO Mot. at 19-21. The State is wrong. First, as an initial 9 10 matter, this provision’s reach is limited to only the “issuance of an immigrant visa” meaning that it does not apply to nonimmigrant visas or to refugees (who generally do not enter the United 11 12 States with a visa), and also expressly does not extend to procedures for processing visa 13 applications. Indeed, § 1152(a)(1)(B) clarifies that subsection (A) is not to be “construed to limit 14 the authority of the Secretary of State to determine the procedures for the processing of immigrant 15 visa applications or the locations where such applications will be processed.” This clarification 16 suggests that the Executive Order, in part or in whole, may not be covered by the restrictions of 17 subsection (A) because the Executive Order governs the procedures for pausing then resuming 18 19 visa applications. See, e.g., Executive Order §§ 3(a), 5(a). Moreover, this provision does not 20 purport to prohibit preference, priority, or discrimination on the basis of religion, so it would 21 provide no benefit to the State here under one of the State’s theories of the case. See TRO Mot. 22 23 at 10 (“There is little doubt that the Executive Order is prompted by animus to those of the Islamic faith[.]”). By the statute’s plain terms, then, the provision could have only limited application to 24 25 the State’s claims here. 26 27 11 28 These exceptions include most family based, employment based, and special immigrant visa categories. 8 U.S.C. §§ 1101(a)(27), 1151(b)(2)(A)(i), 1152(b), 1153. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 17 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 20 of 34 1 2 3 More fundamentally, however, the State misreads 8 U.S.C. § 1152(a)(1)(A) as constraining the broad delegation of authority to the President in Section 212(f) of the Act. “[I]t is a well established axiom of statutory construction that, whenever possible, a court should 4 5 6 interpret two seemingly inconsistent statutes to avoid a potential conflict.” California ex rel. Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012 (9th Cir. 2000). 7 Likewise, it is a “well established canon of statutory interpretation . . . that the specific governs 8 the general.” RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012). 9 10 In light of these principles, Section 212(f) is easily reconciled with § 1152(a)(1)(A): the latter sets forth the general default rule that applies in the absence of action by the President, 11 12 whereas Section 212(f) governs the specific instance in which the President proclaims that entry 13 of a “class of aliens” would be “detrimental to the interests of the United States.” Here, as the 14 challenged Executive Order involves “detrimental” findings, Section 212(f) controls. That is 15 precisely why (as discussed above) prior Presidents have drawn nationality-based distinctions 16 when exercising their authority under Section 212(f). And it is likewise why the 2015 17 Amendment to the INA, as implemented by the Executive Branch over the past year, has drawn 18 19 the exact same nationality-based distinctions as the Executive Order. Indeed, under the State’s 20 view, the United States could not suspend entry of nationals of a country with which the United 21 States is at war. The INA plainly does not require that result. 22 23 The placement of the anti-discrimination rule within Section 1152 further indicates that the rule is not intended to curb the President’s authority under Section 212(f) to suspend or 24 25 26 27 impose restrictions upon entry. Section 1152 generally establishes a uniform annual numerical limit on immigrant visas for nationals of each foreign country. Had Congress intended to enact a general bar against nationality-based distinctions, it would have enacted such a bar as a general 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 18 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 21 of 34 1 2 3 provision of the INA, rather than as a subpart of a subsection speaking to the implementation of nationality-based numerical limitations for the issuance of immigrant visas. Finally, the State mischaracterizes the Executive Order as “tak[ing] us back to a period 4 5 6 in our history when distinctions based on national origin were accepted . . . rather than outlawed.” TRO Mot. at 20. As an initial matter, the State repeatedly characterizes the Executive Order as 7 discriminating on the basis of “national origin.” See TRO Mot. at 1, 6. But the Executive Order 8 does not distinguish on the basis of national origin insofar as that term implicates ethnic heritage; 9 10 rather, discrimination on the basis of nationality implicates whether “a person ow[es] permanent allegiance to a state.” 8 U.S.C. § 1101(a)(21) (defining “national”). 11 12 In any event, in 2015, Congress amended the INA to single out nationals of Iraq, Syria, 13 and other to-be-designated countries for exclusion from the Visa Waiver Program. 14 Background, Section II.B. It is that same group of countries that is covered by Section 3(c) of 15 the Executive Order, which expressly cross-references 8 U.S.C. § 1187(a)(12). And Section 5(c) 16 See of the Executive Order applies to nationals of Syria, one of the countries Congress expressly 17 identified. Accordingly, the President has joined with Congress in selecting the seven countries 18 19 whose nationals warrant different treatment on the basis of national security and foreign policy 20 concerns. 21 B. 22 23 This Court Cannot, and Need Not, Review the President’s National Security Determinations Underlying the Executive Order The State asks this Court to not only disregard case law, Congress’ express delegation of 24 25 26 27 authority to the President, and the President’s own Article II powers, but indeed, to substitute the Court’s own judgment regarding what is in the national security and foreign policy interests of the United States. See, e.g., TRO Mot. at 8. This Court should soundly reject that invitation, for 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 19 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 22 of 34 1 2 3 as courts repeatedly have recognized, these areas are within the exclusive domain of the political branches of our government. As a statutory matter, Section 212(f), by its plain terms, vests complete discretion in the 4 5 6 President to determine whether “the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States,” for the period “as he shall deem 7 necessary,” and to impose such conditions of entry as “he may deem appropriate.” 8 U.S.C. § 8 1182(f). The statute does not require the President to state any basis for such a finding, nor does 9 10 it require ratification of such a finding by any other entity. Instead, it reflects Congress’ considered judgment that these determinations should be vested exclusively in the President. 11 12 Critically, the State cites no instance where any court has reviewed presidential findings 13 under Section 212(f) regarding what is detrimental to the interests of the United States, nor does 14 the State explain how such an inquiry would be judicially manageable. To the contrary, one 15 court analyzing a presidential exercise of authority under 8 U.S.C. § 1182(f) concluded that 16 “because exercise of this discretion is not limited to circumstances defined in the statute, but 17 rather is geared to Executive ‘find[ings]’ and what is ‘deem[ed]’ necessary or appropriate, the 18 19 statute provides no discernable standards by which this court can review the challenged actions 20 under the APA.” Haitian Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla. 21 1991); see also Webster v. Doe, 486 U.S. 592, 594, 600-01 (1988) (holding that similar statutory 22 23 language vested the Director of Central Intelligence with complete discretion over employee discharges, and thus judicial review was precluded). 24 25 26 27 The State here asks the Court to evaluate whether the President’s Executive Order achieves its stated purposes. See TRO Mot. at 9 (arguing that the Executive Order is unlawful because “there is no ‘fit’ between the rationales advanced to support the Executive Order and the 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 20 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 23 of 34 1 2 3 means used to further those rationales”). But that would require the Court inappropriately to second-guess the underlying finding that Congress has tasked the President with making, and which lies at the heartland of his constitutional authority regarding foreign affairs, national 4 5 6 security, and immigration. See Mandel, 408 U.S. at 765 (“[T]he power to exclude aliens is inherent in sovereignty, necessary for maintaining normal international relations and defending 7 the country against foreign encroachments and dangers[.]”); see also, e.g., Harisiades v. 8 Shaughnessy, 342 U.S. 580, 588-89 (1952) (“[A]ny policy toward aliens is vitally and intricately 9 10 interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government.”); Knauff, 338 U.S. at 542; 11 12 Mow Sun Wong, 626 F.2d at 743. It is thus well-established that courts cannot evaluate the 13 President’s national security and foreign affairs judgments, especially in the immigration context. 14 See Knauff, 338 U.S. at 543 (“[I]t is not within the province of any court, unless expressly 15 authorized by law, to review the determination of the political branch of the Government to 16 exclude a given alien.”); INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[J]udicial deference 17 to the Executive Branch is especially appropriate in the immigration context where officials 18 19 ‘exercise especially sensitive political functions that implicate questions of foreign relations.’”); 20 see also Dep’t of Navy v. Egan, 484 U.S. 518, 529-30 (1988); Al-Haramain Islamic Found., Inc. 21 v. Bush, 507 F.3d 1190, 1203 (9th Cir. 2007). 22 23 It is simply not possible for the Court here to evaluate the President’s Executive Order without passing judgment on the President’s national security and foreign affairs determinations. 24 25 26 27 See, e.g., TRO Mot. at 11 (arguing that the Executive Order is unlawful because there is “no basis to conclude that existing screening procedures are uniquely failing as to individuals from the listed countries or as to refugees”). The Constitution vests the President with the duty of 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 21 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 24 of 34 1 2 3 protecting our Nation’s security, and Congress has specifically empowered the President to suspend the entry of categories of aliens if he finds that their entry would be detrimental to the national interest. There is accordingly no basis for the Judiciary to second-guess the President’s 4 5 6 determinations in that regard. See Al Haramain Islamic Found., Inc. v. Dep’t of Treasury, 686 F.3d 965, 980 (9th Cir. 2012) (stating that the court “owe[s] unique deference to the executive 7 branch’s determination that we face ‘an unusual and extraordinary threat to the national security’ 8 of the United States” (quoting an Executive Order)); Harisiades, 342 U.S. at 597 (Frankfurter, 9 10 J., concurring) (noting that immigration policies have sometimes been “departures . . . from the best traditions of this country” and “may be deemed to offend American traditions,” but “the 11 12 13 place to resist unwise or cruel legislation touching aliens is the Congress, not this Court”). Finally, the State also argues that the President’s stated rationale under Section 212(f) 14 was pretextual and, instead, that the Executive Order was “prompted by animus to those of the 15 Islamic faith.” TRO Mot. at 10. But any such inquiry would be directly contrary to the Supreme 16 Court’s decision in Kleindienst v. Mandel, 408 US. 753 (1972), which held that “when the 17 Executive exercises” its delegated plenary power over immigration “on the basis of a facially 18 19 legitimate and bona fide reason, the courts will [not] look behind the exercise of that 20 discretion[.]” Id. at 770. Here, the Executive Order undeniably states a facially legitimate and 21 bona fide reason 22 23 protecting against terrorism which is sufficient to end the matter. Cf. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning has particular force in the area of national security”). Accordingly, the State’s references to 24 25 26 27 statements outside the four corners of the Executive Order are not legally pertinent. The State, moreover, creates a constitutional separation-of-powers problem President, and between a state and the Federal Government between the Judiciary and the to the extent that this Court is being 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 22 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 25 of 34 1 urged to allow the State to use Article III judicial process to attempt to divine the President’s 2 purported subjective motives in issuing the Executive Order. 12 The State cites no precedent for 3 such an inquiry by the Judiciary of the President. Cf. United States v. O’Brien, 391 U.S. 367, 4 5 6 7 8 9 10 383-84 (1968) (holding that an inquiry into the subjective motives of members of Congress is a “hazardous matter” and that courts “will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive”). The State’s Facial Constitutional Challenges Fail C. Aside from its statutory argument under the INA, the State contends that the Executive Order is facially unconstitutional under the Fifth Amendment’s equal protection and procedural 11 12 13 14 15 16 due process doctrines, and under the First Amendment’s Establishment Clause. TRO Mot. at 519. These claims fail for reasons in addition to those discussed above. 1. An overarching and insurmountable hurdle for the State’s claims of facial unconstitutionality is that the State has the burden to show there is no constitutionally valid application of the Executive Order. See Salerno, 481 U.S. at 745; United States v. Mujahid, 799 17 F.3d 1228, 1233 (9th Cir. 2015). That showing is improbable indeed, impossible because it 18 19 is clear that valid applications exist, at an absolute minimum as to unadmitted and nonresident 20 aliens. See Mandel, 408 U.S. at 762 (“It is clear that Mandel personally, as an unadmitted and 21 nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or 22 23 otherwise.”); Plasencia, 459 U.S. at 32 (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his 24 25 application, for the power to admit or exclude aliens is a sovereign prerogative.”); United States 26 27 28 12 In addition, it is well settled that courts have no jurisdiction “to enjoin the President in the performance of his official duties.” Mississippi v. Johnson, 71 U.S. 475, 501 (1866). Accordingly, the President cannot be the subject of any injunctive order. Id.; see Franklin v. Massachusetts, 505 U.S. 788, 826 (1992) (Scalia, J., concurring in part and concurring in judgment). DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 23 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 26 of 34 1 2 3 v. Verdugo-Urquidez, 494 U.S. 259, 269 (1990) (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”). The State does not dispute that the Executive Order is constitutional as applied to this category of 4 5 6 unadmitted and nonresident aliens who have no constitutional right to entry. Whatever claims may exist in hypothetical individual cases, therefore, are irrelevant because the State must 7 cannot 8 unconstitutional. 13 9 10 but demonstrate that all (or even most) applications of the Executive Order are The State’s arguments rest heavily on the Executive Order’s purported application to lawful permanent residents. See, e.g., TRO Mot. at 1 (contending that the Executive Order 11 12 “block[s] longtime legal permanent residents from returning to this country”). But as is now 13 clear, the Executive Order does not apply to such individuals. See Feb. 1, 2017 Memorandum 14 (Exhibit A). 15 16 2. A further problem with the State’s equal protection and procedural due process claims is that they both arise under the Fifth Amendment’s Due Process Clause, but the State is ineligible 17 to assert a Fifth Amendment claim. The Fifth Amendment provides that “[n]o person shall . . . 18 19 be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. 20 “The word ‘person’ in the context of the Due Process Clause of the Fifth Amendment cannot . . . 21 be expanded to encompass the States of the Union, and to our knowledge this has never been 22 23 done by any court.” Katzenbach, 383 U.S. at 323-24; see also Premo v. Martin, 119 F.3d 764, 771 (9th Cir. 1997) (“Because the State is not a ‘person’ for the purposes of the Fifth Amendment, 24 25 26 the State’s reliance on the Due Process Clause was misplaced.”). “Nor does a State have standing as the parent of its citizens to invoke these constitutional provisions against the Federal 27 13 28 With respect to hypothetical individual cases that may arise, the Executive Order contains an overarching direction that “[t]his order shall be implemented consistent with applicable law.” Executive Order § 11(b). DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 24 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 27 of 34 1 2 Government, the ultimate parens patriae of every American citizen.” Katzenbach, 383 U.S. at 324. This defect is also fatal to the State’s equal protection and due process claims. 3 3. The State’s claim under the Establishment Clause which is limited to Section 5(b) 4 5 6 of the Executive Order is likewise meritless. See TRO Mot. at 12. The State argues that Section 5(b) discriminates based on religion, because it “give[s] preference to Christian refugees 7 while disadvantaging Muslim refugees.” TRO Mot. at 7. That is wrong. Notably, Section 5(b) 8 does not take effect for at least 120 days (i.e., “Upon the resumption of USRAP admissions”), 9 10 and thus the State cannot yet know how it will be implemented. The State’s Establishment Clause claim therefore is not ripe. See Addington v. U.S. Airline Pilots Ass’n, 606 F.3d 1174, 1179 (9th 11 12 13 Cir. 2010) (“A question is fit for decision when it can be decided without considering ‘contingent future events that may or may not occur as anticipated, or indeed may not occur at all.’”). 14 Even if the claim were ripe, moreover, Section 5(b) is lawful. That Section applies to all 14 15 16 USRAP admissions not just admissions for nationals of the seven countries of concern so it does not exclusively “tilt the scales in favor of Christian refugees at the expense of Muslims.” 17 TRO Mot. at 12. Moreover, Section 5(b) merely provides an accommodation to minority 18 19 religions within each country participating in the refugee program. That accommodation makes 20 eminent sense, because members of minority religions are more likely to face persecution. Such 21 accommodations do not violate the Establishment Clause. Cutter v. Wilkinson, 544 U.S. 709, 22 713 (2005) (“‘[T]here is room for play in the joints between the Free Exercise and Establishment 23 24 25 26 27 28 14 There is also an interim provision, Section 5(e), which authorizes the Secretaries of State and Homeland Security to admit refugees on a case by case basis, with one factor (of several) being religious persecution as a minority religion. The State does not mention this interim provision in its TRO motion, but its proposed order seeks to enjoin this section “to the extent Section 5(e) purports to prioritize only the refugee claims of certain religious minorities.” ECF No. 3 1 at 3, ¶ 1(e). Obviously Section 5(e) does not prioritize only claims of religious minorities because that is only one of several factors expressly listed, and thus, the State does not appear to be meaningfully challenging this provision. DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 25 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 28 of 34 1 2 3 Clauses, allowing the government to accommodate religion beyond free exercise requirements, without offense to the Establishment Clause.’”). Because Section 5(b) is both lawful and not yet subject to challenge, therefore, the State has failed to justify any relief let alone emergency 4 5 6 relief with respect to this provision. III. THE STATE HAS MADE NO SHOWING OF IRREPARABLE HARM 7 The State’s motion for a temporary restraining order also should be denied because the 8 State has not “demonstrate[d]” that it will be “immediate[ly]” and “irreparabl[y]” harmed by the 9 10 Executive Order if this case proceeds in the normal course. Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988). The State speculates that its residents might be 11 12 harmed by the Executive Order, see Pl.’s TRO Mot. at 22, but to obtain a temporary restraining 13 order, the State must demonstrate irreparable harm to itself, not merely to “third parties.” Phany 14 Poeng v. United States, 167 F. Supp. 2d 1136, 1142 (S.D. Cal. 2001); see, e.g., Adams v. Freedom 15 Forge Corp., 204 F.3d 475, 487 (3d Cir. 2000) (“[T]he preliminary injunction device should not 16 be exercised unless the moving party shows that it specifically and personally risks irreparable 17 harm.”). Because the State has identified no injury to itself much less a likely, immediate, and 18 19 20 21 22 23 irreparable injury it has not met its burden. Even if the Court could consider purported harms to non-parties, moreover, the State does no more than speculate that amorphous harms may occur at some point in time to unspecified individuals. The State claims that some “workers and students” may be harmed economically or psychologically because they will not be able to travel overseas for work or school, and that 24 25 26 27 businesses’ recruitment efforts may be hampered because they may not be able to hire certain aliens. See TRO Mot. at 21. This sort of generalized speculation is a far cry from the concrete evidence of likely immediate and irreparable harm that is necessary to obtain a temporary 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 26 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 29 of 34 1 2 3 restraining order. See Winter, 555 U.S. at 22; Caribbean Marine, 844 F.2d at 674; cf. Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009) (noting that the Supreme Court has disapproved of considering “‘abstract questions of wide public significance’” amounting to 4 5 6 “‘generalized grievances’”). The State’s arguments also fail to acknowledge the limited timeframe relevant to 7 consideration of their request for a temporary restraining order. To obtain such relief, the State 8 must show that irreparable harm will occur in the time prior to a hearing on the preliminary 9 10 injunction motion. Cf. Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (“Ex parte temporary restraining orders . . . should be restricted to 11 12 serving their underlying purpose of preserving the status quo and preventing irreparable harm 13 just so long as is necessary to hold a hearing, and no longer.”). Here, even assuming the State’s 14 harms are both cognizable and irreparable (and they are not), those harms will be suffered over 15 the long-term; there is no showing that harm is imminent within the next days or even weeks. 16 Finally, the restrictions on entry in Sections 3(c) and 5(a) of the Executive Order are both 17 subject to exceptions to be applied by the Secretaries of State and Homeland Security on a case18 19 by-case basis. See Executive Order §§ 3(g), 5(e). Therefore, none of the purported harms the 20 State identifies will occur unless a particular individual falls within the terms of the Executive 21 Order and cannot obtain an exception under these case-by-case provisions. 22 23 Because of the availability of this case-by-case review, any allegations of harm to third parties are not irreparable at this time. Cf. Leidseplein Presse, B.V. v. Does, No. C16-5065 (BHS), 2016 WL 337267, at *1 24 25 26 (W.D. Wash. Jan. 28, 2016) (denying temporary restraining order based on lack of irreparable harm, because “Plaintiff has failed to show that other means of preventing the alleged [harm] are 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 27 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 30 of 34 1 2 3 either unavailable or unavailing” and “Plaintiff has failed to submit evidence describing efforts made to explore other available means of preventing” the alleged harm). IV. THE BALANCE OF THE EQUITIES AND THE PUBLIC INTEREST MANDATE AGAINST A 4 5 6 TEMPORARY RESTRAINING ORDER The State has not demonstrated that any harm to it (and there is none) outweighs the harm 7 that a temporary restraining order would cause the Federal Government, or that “an injunction is 8 in the public interest.” Winter, 555 U.S. at 20. These two factors merge where, as here, the 9 10 Federal Government is the opposing party. Nken v. Holder, 556 U.S. 418, 435 (2009). Courts have accorded “great weight” to considerations of foreign policy and national security when 11 12 balancing the interests and equities of the parties. Nat’l Res. Def. Council, Inc. v. Pena, 972 F. 13 Supp. 9, 20 (D.D.C. 1997); see Winter, 555 U.S. at 24; Comm. for Nuclear Responsibility, Inc. 14 v. Seaborg, 463 F.2d 796, 798 (D.C. Cir. 1971) (Because of “assertions of potential harm to 15 national security and foreign policy 16 assertions which [the court] obviously can not appraise and given the meager state of the record before us, we are constrained to refuse an injunction.”). 17 Moreover, in assessing the public interest, a court must heed “the judgment of Congress, 18 19 20 21 22 23 deliberately expressed in legislation,” and “the balance that Congress has struck.” United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001). These final elements weigh heavily in favor of the Federal Government. The State asks the Court to enjoin an Executive Order that suspends the entry of certain aliens into the United States based on the President’s determination that failing to do so would be detrimental to the 24 25 26 27 interests of the United States, including its national security. The State of Washington disagrees with the President’s determination and believes the Executive Order will harm the interests of residents in that state. The Constitution, however, commits “decision-making in the fields of 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 28 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 31 of 34 1 2 3 foreign policy and national security . . . to the political branches of government,” Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005), not to the states. And in 8 U.S.C. § 1182(f), Congress expressly authorized the President to do what he has done here based upon a finding, 4 5 6 which the President has made here, that “the entry . . . of any class of aliens into the United States would be detrimental to the interests of the United States.” It undoubtedly would be contrary to 7 the public interest for this Court to ignore Congress’s judgment that the President should make 8 such determinations, to second-guess the President’s determination, or to override the President’s 9 10 determination based on purported interests of a single state. See, e.g., Adams, 570 F.2d at 954 (vacating preliminary injunction that directed action by the Secretary of State in foreign affairs, 11 12 13 which “deeply intrude[d] into the core concerns of the executive branch”). Finally, even if the State satisfied the requirements for a temporary restraining order, this 14 Court still would retain its equitable discretion 15 that would interfere in the Executive Branch’s foreign affairs and national security activities. In 16 i.e., the discretion to refrain from issuing relief an analogous situation, the D.C. Circuit held it would be an abuse of discretion for a court to 17 enter equitable relief against one of the President’s foreign affairs policies: “At least where the 18 19 authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more 20 specifically addressed to such concerns than the Alien Tort Statute and the APA, we think it 21 would be an abuse of our discretion to provide discretionary relief.” 22 23 Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985). Similarly here, the Court should not intrude upon the President’s efforts “to ensure that those approved for admission do not intend to harm 24 25 Americans and that they have no ties to terrorism.” Executive Order § 1. 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 29 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 32 of 34 1 2 3 V. ANY RELIEF ENTERED MUST BE LIMITED IN SCOPE TO THE PLAINTIFF STATE AND TO THE SPECIFIC HARM FOUND Even if the Court were to conclude that the State has satisfied the requirements for a 4 5 6 temporary restraining order with respect to some or all of its claims, the Court should not enter the “nationwide injunction” the State seeks. TRO Mot. at 23; see Pl.’s Proposed TRO, ECF No. 7 3-1, at 3. “[A]n injunction must be narrowly tailored ‘to affect only those persons over which it 8 has power, and to remedy only the specific harms shown by the plaintiffs, rather than’ to enjoin 9 10 all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004). Thus, courts routinely deny requests for nationwide injunctive relief. See Dep’t of Def. v. 11 12 Meinhold, 510 U.S. 939 (1993) (staying nationwide injunction insofar as it “grants relief to 13 persons other than” named plaintiff); Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th 14 Cir. 2012) (affirming district court’s refusal to grant nationwide relief). 15 16 CONCLUSION For the reasons set forth above, the Court should deny the State of Washington’s motion 17 for a temporary restraining order. 18 19 DATED: February 2, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General 20 21 JOSEPH H. HUNT Director, Federal Programs Branch 22 23 JOHN R. TYLER Assistant Director, Federal Programs Branch 24 25 /s/ Michelle R. Bennett MICHELLE R. BENNETT ERIC SOSKIN DANIEL SCHWEI ARJUN GARG 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 30 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 33 of 34 1 Trial Attorneys U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov arjun.garg@usdoj.gov 2 3 4 5 6 Attorneys for Defendants 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER - 31 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17 cv 00141 JLR Document 50 Filed 02/02/17 Page 34 of 34 1 CERTIFICATE OF SERVICE 2 3 I hereby certify that on February 2, 2017, I electronically filed the foregoing Opposition 4 to Plaintiff’s Motion for Temporary Restraining Order using the Court’s CM/ECF system, 5 causing a notice of filing to be served upon all counsel of record. 6 7 Dated: February 2, 2017 /s/ Michelle R. Bennett MICHELLE R. BENNETT 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) Document ID: 0.7.12561.7378-000002 U.S. DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Colborn, Paul P (OLC) From : Colborn, Paul P {OLC) Sent: Friday, February 3, 2017 9:49 AM To: Gannon, Curtis E. (OLC); (OLC) Subject: OHS IG Investigation of Immigration Order (b) (6) (OLC); (b) (6) (OLC); Ii By Matt Zapotosky By Matt Zapotosky National Security Follow @mattzap The Department of Homeland Security Office of Inspector General announced late Wednesday that it will conduct a broad review of the implementation of President Trump's controversial refugee ban, looking particularly at whether employees engaged in misconduct or failed to comply with court orders. The review came in response to requests from Sens. RichardJ. Durbin (D-Ill.) and Tammy Duckworth (D-ill.) and whistleblower complaints, said Arlen M. Morales, a spokeswoman for the inspector general's office said. She said the inspector general will produce a report, likely in three to five months, to Congress and the public. Spokesmen for the vVhite House and the Department of Homeland Security did not immediately return messages late ,,...rednesday night. The president's executive order - which temporarily bars refugees and people from seven Muslim-majority countries from entering the United States - was met with nationwide protests and legal challenges soon after it took effect Friday night. Customs and Border Protection officers initially were detaining and deporting valid visa and green-card holders after they arrived at U.S. airports - some even after federal judges ordered the practice to stop. DHS officials have defended their implementation of the order, and the government said as of late Tuesday night that no one remained in detention. But civil liberties lawyers have said they are still pressing for more thorough compliance with court rulings. Document ID: 0.7.12561.61327 They are pushing, for example, for a list of those who were detained, and they have fielded reports of people being coerced into signing away their documentation. DHS officials have conceded that they 1nade some mistakes in the rapid implementation of the order and said that they would investigate concerns brought to their attention. Inspector General John Roth's review, reported bv the Intercept earlier Wednesdav, will not assess whether Trump's executive order is constitutional. That will be a matter left to the courts. Depending on what the review finds, though, it might lay out a narrative counter to previous assertions from the department and the vVhite House. Trump , ..'Tote on Twitter on Monday that Homeland Security Secretary John Kelly "said that all is going well with very few problems," though he later added there was "nothing nice about searching for terrorists before they can enter our country." Inspectors general are supposed to operate independently of the president and the agencies they oversee, and they typically are kept on through different administrations. The Trump transition team, though, initially contemplated holding over inspectors general only "on a temporary basis," according to an email from a member of the Trump transition team. The team later reassured some inspectors general they would not be forced from their posts. Document ID: 0.7.12561.61327 Koffsky, Daniel L (OLC) From: Koffsky, Daniel L (OLC) Sent: Friday, February 3, 2017 11:58 AM To: Colborn, Paul P (OLC); Gannon, Curtis E. (OLC} Cc: Hart, Rosemary (OLC) Subject: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews The draft looks good to me. From: Colborn, Paul P {Ole) Sent: Friday, February 03, 201711:16 AM To: Gannon, Curtis E. (OLC) Koffsky, Daniel L (Ole) · > (b) (6) Cc: Hart, Rosemary {Ole) > Subject: FW: letter to Acting AG Yates from Senate Committee Judiciary Democrats re OlC Form and Legality Reviews What do you think of this dra ft response? It re flects Rosemary's input. (b) (5) Once we agree on a draft, I'd like t o send it to Faith Burton for her consideration. After we get her views, we (b) (5) can conside From: Hart, Rosemary (Ole) Sent : Wednesday, February 01, 2017 11:41 AM (b)(6) To: Colborn, Paul P (OLC) • > Subj ect: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews OK. See you t hen. From: Colborn, Paul P (Ole) Sent: Wednesday, February 01, 2017 11:30 AM To: Hart, Rosemary (OLC) • (b) (6) Subject: RE: Letter to Acting AG Yates from Senate Committee Judici ary Democrats re OLC Form and Legality Reviews I'll look for you at noon. Our conversation should be brief. I discussed this letter briefly with Curtis this morning when he stopped byto discuss the FOIA requests. From: Hart, Rosemary (OLC) Sent: Wednesday, February 01, 2017 11:11 AM (b)(6) To: Colborn, Paul P (Ole) • > Subject: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Document ID: 0.7.12561.6923 Reviews I have flexibility between 12 and 3:30. From: Colborn, Paul P {OLC) Sent: Wednesday, February 01, 201710:30 AM (b)(6) To: Hart, Rosemary (OLC) • > Subject: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats r e OLC Form and Legality Reviews Maybe as a first step you and I should j ust bounce around some ideas for a response. I'm free today except for 11 to 11:30. How about you? From: Hart, Rosemary {OLC) Sent: Wednesday, February 01, 201710:14 AM To: Colborn, Paul P (Ole) • > (b)(6) Subject: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews Curtis for sure. And Dan? From: Colborn, Paul P {OLC) Sent: Wednesday, February 01, 201710:07 AM To: Hart, Rosemary (OLC) Document ID: 0.7.12561.6923 duplicate Colborn, Paul P (OLC) From: Colborn, Paul P (Ole) Sent: Friday, February 3, 2017 1:43 PM To: Gannon, Curtis E. (Ole); Hart, Rosemary (Ole) Cc: Koffsky, Daniel L (OLC) Subject: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews I'll run the draft by Faith. (1think t he White House can want, but the building can't call.) From: Gannon, Curtis E. (Ole) Sent: Friday, February 03, 20171:32 PM To: Hart, Rosemary (OLC) >; Colborn, Paul P (OLC) • (b)(6) > Cc: Koffsky, Daniel L(OLC) > Subject: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews Okay. I recede. I guess the building wants. Fr om : Hart, Rosemary (OLC) Sent: Friday, February 3, 20171:29 PM To: Colborn, Paul P (OLC) • (b)(6) > Cc: Gannon, Curtis E. {Ole} Koffsky, Daniel L (OLC) • (b)(6) Subject: Re: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews (b) (5) On Feb 3, 2017, at 1:02 PM, Colborn, Paul P (OLC) • (b)(6) > wrote: Rosemary? From: Gannon, Curtis E. (Ole) Sent: Friday, February 03, 20171:00 PM >; Koffsky, Daniel L(OLC} (b)(6) • (b) (6) Cc: Hart, Rosemary (Ole) • (b)(6) Subject: RE: Letter to Acting AG Yates from Senate Committee Judiciary Democrats re OLC Form and Legality Reviews To: Colborn, Paul P (OLC) • (b) (5) Document ID: 0.7.12561.6882 IUIUII From: Colborn, Paul P (OLC} Sent: Friday, February 3, 201711:16 AM Document ID: 0.7.12561 .6882 duplicate Document ID: 0112561 .8882 duplicate Document ID: