162 Tech Companies Tell Appeals Court That Trump's 2nd Travel Ban Is Illegal

from the speaking-up dept

As you’ll recall, back in early February, over 100 tech companies signed onto an amicus brief, arguing that President Trump’s initial plan to bar immigration from certain countries was unconstitutional and illegal. A month later, a smaller group of companies signed onto an amicus brief in the district court in Hawaii concerning the revised travel ban (and a few people noted that some of the companies that signed onto the first brief had not signed onto the second one — wondering if that meant many companies weren’t as worried about the revised ban. Except, yesterday an even larger group of tech companies (162 in total) signed onto a new amicus brief for the 4th Circuit court of appeals which is the next appeals court hearing a case on the revised travel ban. And, yes, we at the Copia Institute signed onto this one as well (we also signed onto the first two).

It seems likely that some companies just sat out the Hawaii case because it’s in a district court, and amicus briefs aren’t always as welcome in district courts, and some lawyers view them as wasteful at that stage. Amicus briefs tend to really only matter in appeals courts (or, of course, the Supreme Court). You can read the full brief here (or below), as it makes the case that even the revised ban doesn’t solve the problems of the original ban. It’s worth reading carefully. It’s good to see all of these companies continue to stand up for what’s right, especially when it would be easy to sit back, do nothing, and play nice with the new administration.

And, because I know that some people will insist that the only reason that tech companies have signed onto this is because it gets them cheap labor or some other such criticisms, I can assure you that in many cases, the participation in these amicus briefs is being driven by the employees at these companies, demanding that management stand up and speak out, rather than a top down decision. Many people feel strongly — as I do — that being a country that is welcoming to immigrants is an important part of being American. No one’s arguing that there shouldn’t be background checks and “vetting” and the like — but the executive order goes way beyond that.

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Comments on “162 Tech Companies Tell Appeals Court That Trump's 2nd Travel Ban Is Illegal”

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Bergman (profile) says:

Re: Re: Re:

At what point does standing next to someone who shares your political beliefs cause you to waive your rights? A hundred people? Ten people? One?

Corporations are made of people and people have rights. If standing next to a person that shares your views does in fact cause you to lose your right to freedom of speech and expression, then everything from political parties to the ACLU would become illegal organizations.

David says:

Not enough.

Many people feel strongly — as I do — that being a country that is welcoming to immigrants is an important part of being American.

A majority according to the rules of American elections voted for Trump’s quite explicit agenda.

At any rate, the historical perspective of being (U.S.) American is to welcome immigrants and slaughter the natives.

Anonymous Coward says:

Re: Not enough.

“A majority according to the rules of American elections voted for Trump’s quite explicit agenda.”

Trump actually lost the majority so no, it was not a majority. That said, the Electoral College was explicitly established to prevent the Office of the President from being a Popularity Contest, ON PURPOSE!!! I know that education in America is a joke, but damn!

gigglehurtz (profile) says:

Re: Re: Not enough.

I once read about why it was established, and at the time I thought it made some sense. But now, seeing how it works in practice? I don’t bother voting for president anymore because I know my state will vote R no matter who’s running. With the electoral college in place, my vote doesn’t count – unless, of course, I vote like most in my state.

Anonymous Coward says:

Re: Re: Not enough.

No trump didnt, he was voted in by majority in every state. You do believe in states rights dont you? Trying to claim that 1 large state gets to negate the votes of multiple other states does nothing but cause people to continue to vote against the larger states wishes. The people in CA do not have the same problems and issues as someone in another state. Each state voted for its popular pick. This idiotic claim that trump didnt win the popular vote is a moot point in that CA does not and will not ever speak for the other 350 million citizens in this country.

That One Guy (profile) says:

Re: Re: Re: Not enough.

You need to make up your mind, which is more important, states rights or the rights of the people in the states?

First you say that it’s not fair that a larger state(california in your example) could be able to ‘negate the votes of multiple other states’, and then you seem to say that it doesn’t matter what the popular vote(that is what the majority wanted) was because… reasons?

It’s just slightly absurd to claim on one hand that one larger state shouldn’t be able to ‘negate’ several smaller states, while at the same time holding out that it doesn’t/shouldn’t matter what the majority of voters wanted because that’s not important.

Anonymous Coward says:

No Hidden Agenda here!

Yea we totally believe in their rights…..

the right to sign on as indentured servants for us!

There is NOTHING unconstitutional about Trump’s ban.
There could be something illegal going on.

I am sick and tired of people shitting on the Constitution. The means the Government AND you fucking ignorant plebs.

The Government keeps pretending that it does not protect as much as it should protect.
The shitizens keep pretending that it protects MORE than it actually protects.

The constitution provides no protections for immigrants from shit policy. The Constitution only protects citizens!

If you are willing to fuck with and twist the constitution then you have no grounds to bitch when others do the same!

Anonymous Coward says:

Re: No Hidden Agenda here!

An executive order that prevents rights given by laws that was passed by Congress and signed by a President cannot be overturned by an executive order. That is what makes it unconstitutional.

The Constitution protects both People (everywhere) and Citizens, and often that is specifically mentioned in the article to separate out which matters.

So Mr No Hidden agenda, you may want to read the Constitution first.

Anonymous Coward says:

Re: Re: No Hidden Agenda here!

No that would only make it ILLEGAL, not unconstitutional, as I already stated. In order for something to be unconstitutional it has to be in breach of the laws established in the Constitution itself, NOT any laws established by Congress. There really is a difference and you only reveal yourself to be a complete idiot.

I am more informed on the Constitution than most citizens and elected officials. Unlike most of you idiots with party agenda’s I care about the Constitution and have the wisdom to understand that if YOU ignore it or try to twist its meaning, then you have no standing to challenge anyone else.

Because of ignorant idiots like you, we do not have enough help from the voters to keep the government from taking your your my rights. You think you know a few things but you don’t even understand the difference between laws passed by congress and the Articles & Amendments of the Constitution.

btr1701 (profile) says:

Re: Re: No Hidden Agenda here!

The Constitution protects both People (everywhere)

No, it doesn’t. It protects American citizens both domestically and abroad with regard to actions by the US government, and it protects non-citizens when they are on American soil. The Constitution does not apply to or protect foreign nationals in foreign countries.

In other words, all six billion people in Earth do not have a due process right to emigrate to the US.

parliboy (profile) says:

Re: Re: Re: No Hidden Agenda here!

You might consider that this isn’t just about people as it is about government. Specifically, that the government cannot institute policies that violate the Constitution. You might notice that it wasn’t in immigrant that brought suit in Hawaii, but someone in Hawaii who had standing by demonstrating harm by the executive order.

So, the first step to understanding what’s going on is to stop focusing on the rights of the people, and start focusing on the inherent Constitutional limitations of the government.

btr1701 (profile) says:

Re: Re: Re:2 No Hidden Agenda here!

The entire premise of this case is among the most absurd lawsuits ever brought in court for a number of reasons:

1. For decades upon decades, the courts have been clear that the right to exclude is plenary and entirely the political branches’ prerogative. The courts have no power to second-guess any decision– and that is settled law.

2. No less than seven federal statutes grant the president full power to bar entry to aliens, even those who have already received visas. In fact, one of the laws, 8 U.S. Code §1201(h)(i), which passed the Senate 96-2 in 2004, explicitly stripped the courts of any jurisdiction to adjudicate the revocation of visas for anyone seeking entry into the country.

3. A foreign national has no legitimate standing to challenge federal immigration laws or national sovereignty.

4. Shockingly, the other plaintiffs in the lawsuit challenging the travel ban are refugee resettlement contractors who were given standing to sue on the grounds that they are supposedly entitled to taxpayer funding and that a refugee moratorium would hurt their business!

5. Even if foreign nationals could obtain standing through U.S. relatives, this case is not ripe because it assails the president’s policies on future immigration. Thus there is no valid case or controversy with injury-in-fact.

6. The notion that a district judge could issue a nationwide injunction outside the specific case before him/her which sets a national immigration policy is bonkers.

7. The district judge used political statements as the foundation of his legal argument, which should scare anyone who thinks upholding jurisprudential standards, where judicial decisions are based in law, is important.

8. The entire premise that the Establishment Clause grants foreign nationals a religious liberty right to immigrate (but it supposedly doesn’t grant conscience and property rights to actual Americans citizens of faith) is preposterous. Nor is there any Equal Protection or Due Process right. As the Supreme Court said in Ju Toy v. United States (1905):

“That Congress may exclude aliens of a particular race
from the United States, prescribe the terms and
conditions upon which certain classes of aliens may
come to this country, establish regulations for sending
out of the country such aliens as come here in
violation of law, and commit the enforcement of such
provisions, conditions, and regulations exclusively to
executive officers, without judicial intervention are
principles firmly established by the decisions of this

Two years prior, in the “Japanese Immigrant Case”, the court used the exact same language and declared that, based on an uninterrupted stream of near-unanimous decisions, the constitutionality of such an exclusion “is no longer open to discussion in this Court.”

9. Even if we agreed to this absurd and dangerous premise that there are anti-discrimination limitations on national sovereignty, a premise these current district courts have apparently accepted as gospel, there is no discrimination here. The moratorium on refugees is applied equally to every nation, and the six countries targeted for suspension of visas are enemy or failed states. The largest Muslim nations are not even on the list.

10. In addition to being covered and even mandated by statute, the right to exclude is inherent in the president’s Article II powers. Don’t believe me? Ask the Supreme Court (Knauff v. Shaughnessy, 1950):

“When Congress prescribes a procedure concerning the
admissibility of aliens, it is not dealing alone with a
legislative power. It is implementing an inherent
executive power.

Thus, the decision to admit or to exclude an alien may
be lawfully placed with the president, who may, in
turn, delegate the carrying out of this function to a
responsible executive officer of the sovereign, such as
the Attorney General. The action of the executive
officer under such authority is final and conclusive.
Whatever the rule may be concerning deportation of
persons who have already gained entry into the United
States, it is not within the province of any court,
unless expressly authorized by law, to review the
determination of the political branch of the Government
to exclude a given alien.”

Gwiz (profile) says:

Re: Re: Re: No Hidden Agenda here!

The Constitution does not apply to or protect foreign nationals in foreign countries.


I disagree.

The wording in most of the Articles and Amendments refer to "people" instead of "citizens" and have no restrictions in regards to physical location. The Constitution is simply a list of what the US government may or may not do and isn’t restricted any sub-set of humanity, except for the Articles and Amendments that are specifically worded to apply only to "citizens".

It’s my belief that the Constitution applies to anyone and everyone who has dealings with the US government, with the exception of the Articles and Amendments that apply only to "citizens" (for example, the right to vote).

Obviously, our courts do not subscribe to my view of this.

Roger Strong (profile) says:

Re: No Hidden Agenda here!

The constitution provides no protections for immigrants from shit policy. The Constitution only protects citizens!

Incorrect. Immigrants are protected by the Constitution vs. deprivation of life, liberty or property without due process of law. They have freedom of speech and religion, and if arrested, a right to a Miranda warning.

The big exception is that they’re not allowed to vote in state and national elections.

This is the same for undocumented immigrants except for a further exception; they get almost no due process in removal proceedings.

Anonymous Coward says:

Re: Re: No Hidden Agenda here!

The Constitution’s Preamble clearly states…

“and secure the Blessings of Liberty to ourselves and our Posterity”

that the Constitution applies to “ourselves”. People like you are why government gets by with taking away your rights. You cannot even comprehend basic English.

PaulT (profile) says:

Re: Re: Re: No Hidden Agenda here!

Hmmm… believe the Supreme Court and a couple of centuries of case law, or some obnoxious anonymous guy arguing that people be stripped of basic rights?

“People like you are why government gets by with taking away your rights.”

Without a hint of irony as he argues that should happen to other groups of people. Comedy gold.

Roger Strong (profile) says:

Re: Re: Re: No Hidden Agenda here!

To continue simple repeating this same conversation from a couple weeks ago…

Gosh, this leaves me in a difficult position.

I have to choose between Politifact’s article, for which they interviewed several legal scholars. And cite the author of immigration books about constitutional protections for undocumented immigrants. And quote a law professor at University of California-Davis. And cite several court decisions outlining the rights of undocumented immigrants. And more.

Or, believe an Anonymous Coward babbling the sort of pretentious nonsense expected from those who wander out of Breitbart of InfoWars when their views don’t align with the facts.

What to do, what to do…

The United States is built on immigration. This was especially true when the U.S. Constitution was written. Many of those who wrote it were immigrants if not children of immigrants. There is no sign, let alone any reason to believe, that they wanted to deny anyone the Constitution’s protections until they gained citizenship.

Anonymous Coward says:

Re: Re:

We do not need to let people from terror prone countries into our country without proper vetting (which these countries cannot provide us with the needed information to conduct).

But you mouthbreathing rednecks have all your guns! Even the ones that are fucking crazy! What the fucking fuck are you fully armed pussies so afraid of?

Lemme guess….people with a full mouth of teeth?

PaulT (profile) says:

Re: Re: Re:

The fun thing about this type of argument is that the kinds of refugees / immigrants that these guys are so deathly afraid of are already subject to vetting at a much higher rate than most other people entering the US. A Syrian refugee will spend years being vetted, yet a French tourist might be able to enter without even applying for a visa. Yet, these cowards will happily deny human rights to the honest refugee and not expend an extra thought on the tourist who disappears after overstaying their waiver period with unknown motives…

PaulT (profile) says:

Re: Re:

“We do not need to let people from terror prone countries into our country without proper vetting”

Who is arguing that they should not be vetted?

“You need to pull your head out of your Liberal ass and use common sense.”

You need to pull your head out of your (whatever tribe you claim to belong to) ass and deal with reality. Start by addressing what people are actually saying, not what the voices in your head tell you they’re saying.

The Wanderer (profile) says:

Re: Re:

We do not need to let people from terror prone countries into our country without proper vetting (which these countries cannot provide us with the needed information to conduct).

If all the executive order did was say "if you can’t get the information you need to properly vet someone, don’t let that person in", that would be barely controversial and we wouldn’t even be having this conversation. What country they’re from has, or should have, nothing whatsoever to do with it.

The fact that this started out with a list of countries (picked up from an action taken by the Obama administration, at that, rather than devised based on assessing the ability of each country to properly support the vetting process) is a pretty strong indication that it’s not even attempting to say any such thing.

Anonymous Coward says:

So the progressive tech companies, the ones who abuse women, those who are devoid of diversity, the ones who make headlines over and over again discriminating against women, support immigration? How very progressive of them.

Everyone uses the exception (highly skilled individuals) to talk about immigration while ignoring the fact that they want to let in the uneducated and untalented.

The H1B is a joke used pretty much only to bring in low paid talent, and this condemnation comes from the guy that wrote the law.

Tech companies are pretty much white men, rich white men. Rich white men who employ other white men and only want immigrants so they can pay lower wages. Fuck you tech companies.

Anonymous Coward says:

Re: Re: Re:2 Re:

Computerworld wrote about the top 10 users of H-1B visas last year were all offshore outsourcing firms. They hired nearly half of all H1-B workers and less than 3 % of them applied to become permanent workers.

According to the Economic Policy Institute (EPI) more than 80% of H1B workers are hired at wages below those paid to American born workers in similar jobs.

As for H1B and startups? Someone on the visa can’t start their own company and work at it. They can invest in it but they can’t work or be an executive at it.

Face it, the “highly skilled worker” immigration is a smoke screen used to justify a lax immigration policy. You want to let everyone in but use the very small percentage of good immigration to support letting everyone in.

PaulT (profile) says:

Re: Re:

Yeah, the US would be so much better off without the likes of Elon Musk, Sergei Brin, even Steve Jobs being allowed within their borders, right? Who needs those immigrants, right?

Now, you have some point about abuse of the HB-1 visas, but your trying to lump all immigrants in with those exposes a massive bias on your parts, not reality.

Anonymous Coward says:

Re: Re: Re:

Hey, I have no problem letting in Elon, Sergi and others that are at the tops of their fields, that can contribute to our society and will integrate into it.

Why would we ever want to bring in others that have no education, have what would be considered no future and possibly have no interest in accepting our culture and fitting in?

Gwiz (profile) says:

Re: Re: Re:3 Re:

What possible reason is there to intentionally import millions of other countries’ poor?


Actually, those who have the cojones to actually relocate to another country tend to be the "go getters" of their respective societies. They are productive and often start up businesses that create jobs in their new countries. They pay more in taxes than they receive in welfare. They spend their income on local goods and services. Overall, higher rates of foreign-born population historically have corresponded to lower unemployment rates.


The Wanderer (profile) says:

Re: Re: Re:4 Re:

I don’t think that’s what the "makes me wonder why let rednecks breed without a permit" was saying.

I think that comment was pointing out that the description "have no education, have what would be considered no future and possibly have no interest in accepting our country or fitting in" sounds like it would apply fairly well to rednecks, or at least to the stereotypical image thereof.

And if we’re not going to let that sort of person come into the country, why should we let the ones who are already here reproduce? Either one increases the number of such people in the country, after all; if the goal is to keep the number of such people down, both actions would seem equally justified. Or unjustified, as the case may be.

Steve R. (profile) says:

This May Bite the Corporate Executives Back

in challenging Trumps executive authority, these corporations are opening the door to having their own executive authority castrated. There is not an executive decision that does not have an impact on one or more groups of people, some claiming privilege based on identity politics.

Imagine, a retail company decides to raise its prices. The executives of that company may find themselves targets of lawsuits claiming that those price increases create “disparate impacts”.

Do we want every executive decision second guessed by the judicial system?

Be careful of what you ask for. These executives may find-out that they have opened Pandora’s Box and will regret it.

Teamchaos (profile) says:

Just more over reaction by the liberal left to anything Trump. It’s not like these companies are actually harmed by the travel ban. Just how many Somali software developers are being banned from entering the country? I realize they work cheap on their H1B visas, but there can’t be many of them.

Please donate to the Techdirt survival fund. I did.

btr1701 (profile) says:


> Many people feel strongly — as I do — that being a country that is welcoming to immigrants is an important part of being American.

That’s all well and good, but your feelz about the true spirit of America doesn’t change the fact that the Constitution gives the president virtually unfettered power to determine the limits of foreign immigration into the US. This has been unquestioned for the 200+ years of this nation’s existence, until Trump took office, then suddenly everyone from state and local governments to tech companies think they have a legal check on executive authority in this area.

Roger Strong (profile) says:

Re: Legality

You mean like how Trump tried to put a limit on immigration based on religion? It turned out that no, the Constitution didn’t give him that “virtually unfettered power.”

This was nothing new, because it hasn’t “been unquestioned for the 200+ years of this nation’s existence.” It’s often been questioned and tested.

btr1701 (profile) says:

Re: Re: Legality

You mean like how Trump tried to put a limit on
> immigration based on religion?

Which he didn’t actually do.

Non-Muslims from the listed countries were also barred from entry.

And Muslims from other countries not on the list were not barred from entry.

Even so, past presidents have banned immigration from select majority-Muslim countries before and not been overruled by the courts. It seems that any commonly accepted power of the presidency only becomes unconstitutional the moment Trump exercises it.

PaulT (profile) says:

Re: Re: Re: Legality

It’s interesting how people who defend Trump on this issue always ignore his fully, repeatedly announced intention to ban Muslims (which seems to be a major objection in the courts) and the fact that this way one of the few ways he could even pretend to push it though without openly violating the constitution. That’s even without commenting on other factors that make the attempt a pretty despicable ploy.

“Even so, past presidents have banned immigration from select majority-Muslim countries before and not been overruled by the courts.”

Yes, they did so in a targeted way with minimal negative repercussions on people not tagreted while not bragging about how they wanted to ban all people of a certain relgion from a country. Why, it’s almost as if doing a good job while not acting like a bigoted jackass helps people accept your actions a little better.

“It seems that any commonly accepted power of the presidency only becomes unconstitutional the moment Trump exercises it.”

In the way he attempts to exercise it, sure. Maybe he should employ people who know what they’re doing in their roles rather than family and incompetent sycophants, then he’d understand where the limits of his powers are and stop trying to steamroll over them.

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