STOP REPEATING HISTORY: THE STORY OF AN AMICUS BRIEF AND ITS LESSONS FOR ENGAGING IN STRATEGIC ADVOCACY, COALITION BUILDING, AND EDUCATION.

• Author: Chang, Roberts
• Position: Symposium on the Seventy-Fifth Anniversary Year of Executive Order 9066

When Executive Order 13769 (1) issued and the legal challenges against it began, the Fred T. Korematsu Center for Law and Equality submitted amicus briefs in cases around the country. In doing this work, the Center was also mindful that advocacy should not be limited to the arena of courts, but must also include community organizing to build coalitions and public education in order to bring about durable change. The amicus briefs served as a core part of a broader advocacy strategy. Fortunately, the Korematsu Center was able to draw on its resources, including the Civil Rights Clinic at Seattle University School of Law, a team of pro bono attorneys at Akin Gump, and, as the travel ban challenges progressed, members of the legal teams that had represented Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui in the successful efforts in the 1980s to overturn the wartime criminal convictions of those men. (2) As the cases progressed, a number of civil rights organizations and bar associations joined the effort.

The final amicus curiae brief reprinted below was the culmination of more than a year of work in opposition to the Trump Administration's various iterations of the Muslim travel and refugee ban. Readers may find it interesting and useful to learn how the coalition developed and how their work evolved. We begin with that narrative, and then follow it with the specific advocacy strategy behind the amicus brief.

1. THE STORY BEHIND THE AMICUS BRIEF

   The first sparks of this brief came together soon after President Donald J. Trump issued the first iteration of the Muslim ban on January 27, 2017. (3) In the travel ban and the legal arguments advanced by the Department of Justice in support of it, the Korematsu Center saw echoes of the past, echoes of shameful legal precedents that had permitted the exclusion of immigrants based on race and nationality and the mass incarceration of Japanese Americans during World War II. The government's invocation of the "plenary power doctrine," that the President has "unreviewable authority" in matters of immigration, has its roots in blatantly racist cases from the late 19th century, such as Chae Chan Ping v. United States. (4) The government's invocation of national security to shield the President's wide-sweeping ban from meaningful judicial scrutiny harkens back to World War II, when the Supreme Court chose to defer to the Executive branch and the military with regard to the removal and incarceration of more than 110,000 Japanese Americans from the West Coast states. (5) The Korematsu Center contemplated an amicus brief that would remind courts of this history as part of an effort to keep our country from repeating its mistakes. The Center saw this as an opportunity for a course correction in our constitutional jurisprudence as it related to immigration and national security. (6)

   Meanwhile, Elizabeth Rosen and Sofie Syed, associates at Akin Gump, were among the hundreds of lawyers who swarmed John F. Kennedy International Airport the day after the first Executive Order, to protest and to volunteer their services to inbound travelers from the countries named in the order. Syed was mentioned in a Rolling Stone article published online that weekend. (7) Alice Hsu, a corporate partner at Akin Gump and a mentor and friend of Syed, called Robert Chang, the Korematsu Center's Executive Director, to catch up on news of the travel ban and the legal challenges that had been filed immediately in multiple courts, and to tell him that Syed had been featured in Rolling Stone. (8) Hsu had worked for Chang as a research assistant while she was a law student at Loyola Law School, (9) and they had recently reconnected at a bar association conference. That reconnection led to Hsu--despite her corporate practice specialty--leading and managing a team of Akin Gump litigators, including Syed, in writing an amicus curiae brief to New York's high court for the Korematsu Center in 2016. (10) That case, People v. Bridgeforth, (11) involved jury selection in which the prosecution repeatedly struck potential jurors who were dark-skinned women. The question was whether discrimination in jury selection based on skin color--as opposed to race--was subject to Batson (12) challenges. (13) The amicus brief, in which the Korematsu Center was joined by a host of civil rights organizations, bar associations, and law professors, was filed in October 2016, and Hsu was instrumental in assembling the group of amici. And in late December 2016, the New York Court of Appeals had ruled that such skin color discrimination in jury selection was impermissible. (14) Though the court did not cite directly to the amicus brief in its opinion, it cited to two studies that the amicus brief brought to the attention of the court. (15)

   So when Hsu called Chang just a few weeks after the successful outcome in Bridgeforth to tell him about Syed's and Rosen's volunteer work at JFK, Chang asked if Akin Gump would be interested in working on amicus briefs to be filed in the travel ban cases, and the firm was quickly retained. Among the litigators who Hsu asked to join the team was Robert Johnson, a New York commercial litigator who happened to be already admitted to the Eastern District of Michigan--one of the courts in which plaintiffs challenged the first executive order. The early strategy was to file amicus briefs in as many district court challenges as possible, (16) and if one of the quickly-moving litigations was pending in that district, it would require counsel admitted in that district. The team planned to file motions for admission pro hac vice where necessary, but with multiple filings to be done in a short period of time, finding counsel already admitted and ready to join the team was an advantage.

   Over the next four days, while Chang and the Akin Gump team developed their arguments and began drafting, the travel ban litigation moved quickly in courts around the country. On Friday evening, February 3, 2017, Judge James Robart in Seattle issued a temporary restraining order, nationally enjoining enforcement of the travel ban. (17) The government appealed on Saturday, February 4, and filed an emergency motion for a stay pending appeal. That same day, the Ninth Circuit ordered that the challengers file their opposition papers by Sunday, February 5, at 11:59 p.m. PST; that the government file its reply papers by Monday, February 6; and that oral argument would be held February 7. (18) Accordingly, on a Sunday morning conference call, the Korematsu Center and Akin Gump teams decided that it would be necessary to finish the brief in a matter of hours and file it before midnight. While much of the nation was absorbed by the Super Bowl that day, the amicus team was busy finalizing the brief, obtaining consent of the parties to file the brief, proofreading and cite-checking. (19)

   In rapid succession, the team refined and improved the brief, and filed it in multiple district courts. (20) By mid-February, Jay Hirabayashi, Holly Yasui, and Karen Korematsu--the children of Gordon Hirabayashi, Minoru Yasui, and Fred Korematsu--had signed on as amici as well. More than a decade before, Hirabayashi, Yasui, and Korematsu had filed an amicus brief in Turkmen v. Ashcroft, (21) challenging the detention of Arab and Muslim men after September 11, 2001, represented by Akin Gump partner Robert H. Pees. (22) In Turkmen, as in the current travel ban litigation, the amici drew parallels between the U.S. government's use of executive power to target Japanese Americans during World War II and Muslims after September 11. (23)

   In March, the President issued Executive Order 13780 (24) ("EO-2"), superseding the first travel ban, and the process began anew. The amicus team updated its brief and filed again in district courts (25) and in the Fourth and Ninth Circuit Courts of Appeals. (26) In June, the government filed petitions for certiorari in the Supreme Court and applications for a stay pending appeal; on June 26, 2017, the Supreme Court issued an order narrowing the scope of the injunctions and granting certiorari. (27) The amicus team was now headed to the Supreme Court, with its brief due in mid-September.

   The opportunity for the coram nobis teams--including the individual amici--to file a brief in the Supreme...