Tuesday, September 19, 2017


Rule of Law Clinic Files Amicus Brief in SCOTUS Travel Ban Case

The Rule of Law Clinic meets to work on a case.

The Rule of Law Clinic at Yale Law School filed an amicus brief on behalf of 50 senior former national security officials on September 18, 2017 in support of the State of Hawaii and the Iraqi Refugee Assistance Project’s lawsuit against the Administration. The lawsuit, which will be considered by the U.S. Supreme Court this fall, challenges a revised executive order that temporarily suspends the entry of certain refugees and travelers from a group of six predominantly Muslim countries.

The brief argues that the executive order does not fulfill its stated purpose of enhancing our national security and is not based on any credible intelligence cited by the administration. It also argues that the order was never subjected to any proper interagency process.

“All available evidence suggests that the Order was not based on national security judgment at all, but rather, on a deliberate political decision to discriminate against a religious minority,” states the brief. “Amici join together here, not to second-guess the President’s national security judgment, but to underscore the many ways in which the Order under review does not appear to reflect sound national security judgment at all.”

This is the latest of three briefs the clinic has submitted to the Supreme Court regarding the legality of the Administration’s travel ban. Read more about the other filings here.

“We are grateful to our clients for joining this bipartisan effort and to our students for putting in long hours during the first weeks of the term to finalize this brief,” said Professor Harold Hongju Koh. “The Administration cannot cloak a discriminatory action in the veil of national security. Such executive action does not warrant reflexive judicial deference.”

On September 11, 2017, the Supreme Court stayed a portion of the Ninth Circuit’s order holding that refugees with sponsorship from established agencies were not subject to the executive order, allowing much of the travel ban to stand. Justice Anthony Kennedy, acting in his capacity as the Circuit Justice for the Ninth Circuit, stayed that portion of the order, pending further action from the Supreme Court. The Supreme Court will hear oral arguments on the merits of the case on October 10, 2017. The case will be argued by David Cole ’84 and Neal Katyal ’95.

The 50 signatories represent a bipartisan group of former national security officials, including former senators, cabinet members, and advisors from both political parties. Those that have signed include Secretary John F. Kerry (Yale College ’66), Samantha Power ’92 (Yale College), Chuck Hagel, and Michael Hayden. Several Yale Law School graduates are also included on the brief, including James B. Steinberg ’78, James C. O’Brien ’88, Jonathan Finer ’09, Jeff Prescott ’94, Josh Geltzer ’11and David S. Cohen ’89. Yale Jackson Institute faculty members Ryan Crocker and Robert Ford also signed the brief. 

The team was led by Professor Koh and visiting lecturer in law Phil Spector ’00. Eleven current students and recent graduates assisting in researching and drafting the brief including: Zoe Weinberg ’20, who led the project, Alexandra Mahler-Haug ’19, Nathaniel Zelinsky ’18, Adeel Mohammadi ’19, Varun Char ’19, Wazhma Sadat ’19, Brandon Levin ’20, Laith Aqel ’19, Yusef Al-Jarani ’19, Richard Medina ’18, and Beatrice Walton ’18. The team received additional support from teaching fellow Matt Blumenthal ’15, co-counsel Jonathan Freiman ’98 and Tahlia Townsend ’05 of the firm Wiggin & Dana, and Bill Murphy and John Connolly of Zuckerman Spaeder in Baltimore.

“We have been proud to assist this bipartisan group of former national security officials in communicating their knowledge and expertise to the Supreme Court,” said Zoe Weinberg. “Categorical bans are counter to the values embodied in our Constitution and are an ineffective means of enhancing our country’s national security.”

The Rule of Law Clinic focuses on maintaining U.S. rule of law and human rights commitments in four areas: national security, antidiscrimination, climate change, and democracy promotion. In addition to its work on the travel ban cases, the Clinic has also recently worked on issues related to the Administration’s announced withdrawal from the Paris Climate Change Agreement, redistricting, and discrimination against Muslim groups.