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Stop Repeating History: the Story of an Amicus Brief and Its Lessons for Engaging in Strategic Advocacy, Coalition Building, and Education, 68 Case W Case Western Reserve Law Review Volume 68 | Issue 4 2018 Stop Repeating History: The tS ory of an Amicus Brief and Its Lessons for Engaging in Strategic Advocacy, Coalition Building, and Education Robert S. Chang Alice Hsu Elizabeth C. Rosen Sofie yS ed Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Robert S. Chang, Alice Hsu, Elizabeth C. Rosen, and Sofie yS ed, Stop Repeating History: The Story of an Amicus Brief and Its Lessons for Engaging in Strategic Advocacy, Coalition Building, and Education, 68 Case W. Res. L. Rev. 1223 (2018) Available at: https://scholarlycommons.law.case.edu/caselrev/vol68/iss4/9 This Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 68·Issue 4·2018 Stop Repeating History: The Story of an Amicus Brief and Its Lessons for Engaging in Strategic Advocacy, Coalition Building, and Education Robert S. Chang,†Alice Hsu,†† Robert A. Johnson,††† Elizabeth C. Rosen†††† & Sofie Syed††††† When Executive Order 137691 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, † Professor of Law and Executive Director, Fred T. Korematsu Center for Law and Equality, Seattle University School of Law. I’d like to thank the pro bono team at Akin Gump for their unflagging dedication to support the Korematsu Center in its advocacy efforts with regard to the various iterations of the travel ban. In the first phase of the litigation, this included pulling together attorneys from its offices around the country on Super Bowl Sunday to file what would be the first of many amicus briefs on this issue. Two days earlier, Judge James L. Robart issued a nationwide temporary restraining order against portions of the travel ban on Feb. 3, 2017, Washington v. Trump, No. 17-cv-0141 (JLR), and expedited briefing before the Ninth Circuit required amicus briefs to be filed by midnight on Feb. 5, 2017. This story is told more fully below. †† Partner, Akin Gump Strauss Hauer & Feld LLP. In addition to all of our Akin Gump colleagues specifically named in the text of this note, I would like to thank our Supreme Court specialists Pratik A. Shah and Martine Cicconi; Jessica Weisel of our California appellate group; and Elizabeth Atkins, Nathaniel Botwinick, Kareen Ejoh, Jorge Guzman, Adria Hicks, Beth Kasden, Abigail Kohlman, Jennifer Langmack, Harry Larson, Jeff Mutterperl, Daniella Roseman, Risa Slavin, Sangita Sahasranaman, Steven Schulman, and James Tysse. ††† Partner, Akin Gump Strauss Hauer & Feld LLP. †††† Associate, Akin Gump Strauss Hauer & Feld LLP. ††††† J.D., Columbia Law School. 1. Exec. Order No. 13769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). 1223 Case Western Reserve Law Review·Volume 68·Issue 4·2018 Stop Repeating History 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 chal- lenges progressed, members of the legal teams that had represented Gordon Hirabayashi, Fred Korematsu, and Minoru Yasui in the suc- cessful efforts in the 1980s to overturn the wartime criminal convictions of those men.2 As the cases progressed, a number of civil rights organi- zations 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 Administra- tion’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. I. 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 2. Each man’s criminal convictions were upheld by the U.S. Supreme Court. See Hirabayashi v. United States, 320 U.S. 81, 104 (1943); Yasui v. United States, 320 U.S. 115, 117 (1943); Korematsu v. United States, 323 U.S. 214, 224 (1944). Decades later, the convictions of Gordon Hirabyashi and Fred Korematsu were overturned in proceedings seeking a writ of coram nobis. See Hirabayashi v. United States, 828 F.2d 591, 608 (9th Cir. 1987); Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984). Minoru Yasui’s conviction was vacated by the U.S. District Court for Oregon but the court refused to reach Yasui’s constitutional challenge, and during the pendency of Yasui’s appeal of that decision, Yasui passed away. Yasui v. United States, 772 F.2d 1496, 1499-1500 (9th Cir. 1985); Minoru Yasui (1916-1986), The Oregon History Project, https://oregonhistory project.org/articles/biographies/minoru-yasui-biography/#.WuCQU9Pwb OQ [https://perma.cc/5SE4-53XA] (last visited Apr. 25, 2018). For a recent account that examines what led to the overturning of these convictions, focusing on Korematsu, see Lorraine K. Bannai, Enduring Conviction: Fred Korematsu and His Quest for Justice (2015). 3. See Exec. Order No. 13769, 82 Fed. Reg. 8,977 (Jan. 27, 2017). 4. 130 U.S. 581 (1889). 1224 Case Western Reserve Law Review·Volume 68·Issue 4·2018 Stop Repeating History 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 Cen- ter contemplated an amicus brief that would remind courts of this history as part of an effort to keep our country from repeating its mis- takes. The Center saw this as an opportunity for a course correction in our constitutional jurisprudence as it related to immigration and na- tional 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 5. See, e.g., Korematsu v. United States, 323 U.S. 214 (1944). 6. See generally Robert S. Chang, Whitewashing Precedent: From The Chinese Exclusion Case to Korematsu to the Muslim Travel Ban Cases, 68 Case W. Res. L. Rev. 1183 (2018) (discussing immigration exceptionalism and national security exceptionalism as deformities in U.S. constitutional jurisprudence). 7. John Knefel, Inside the Huge JFK Airport Protest Over Trump’s Muslim Ban, Rolling Stone (Jan. 29, 2017), https://www.rollingstone.com/ politics/features/inside-the-huge-jfk-airport-protest-over-trumps-muslim-ban- w463615 [https://perma.cc/DSF6-GHG7]. 8. The call also was precipitated by a Google doodle. When Syed told Hsu about Rolling Stone, it was Monday, January 30, 2017. Hsu went to Google to look up the article, and noted that the featured Google doodle of the day was Fred Korematsu, whose birthday is commemorated on that day by several states and municipalities. Fred Korematsu’s 98th Birthday, Google (Jan. 30, 2017), https://www.google.com/doodles/fred-korematsus-98th- birthday [https://perma.cc/2VR5-8J8]. 9. Hsu did research for Chang’s first book, Robert Chang, Disoriented: Asian Americans, Law, and the Nation-State (1999), which included discussions of the plenary power doctrine and treatment of different Asian American immigrant groups in U.S. history. 1225 Case Western Reserve Law Review·Volume 68·Issue 4·2018 Stop Repeating History New York’s high court for the Korematsu Center in 2016.10 That case, People v.
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