Tech Giants Have the Legal Clout to Help Stop Trump’s Refugee Ban

Getty Images

If the #DeleteUber campaign taught the tech industry anything, it’s that trying to stay neutral on President Trump’s refugee ban can quickly turn into a marketing catastrophe.
Little wonder then that late last night, 97 tech companies—including Apple, Facebook, Google, and, yes, Uber—filed a friend-of-the-court brief in the US Court of Appeals for the Ninth Circuit arguing against the ban. In the face of the outcry against Trump’s executive order, such a grand gesture makes for good optics. But legal experts say the brief is about more than Silicon Valley’s public image. In this case, tech’s support could help the plaintiffs prevail against Trump.
“The tech industry has been increasingly active in recent years in cases that involve the civil rights of their customers or, like in this case, their employees,” says Neil Richards, a professor at Washington University School of Law in St. Louis. “Courts do take the views of industry seriously in these cases, particularly when those views seem broader than merely guarding the bottom line.”

---

Amicus briefs let parties in a given case include arguments that go beyond the scope of the main brief, but which courts may still find persuasive. The tech industry’s filing does just that. It argues that innovation and economic growth are directly tied to immigration, that the order harms businesses’ competitiveness, and that the order is unlawful because it discriminates on the basis of nationality. Silicon Valley is uniquely positioned to plead those first two cases in particular.
“It is a compelling argument,” says Fatma Marouf, director of the immigrant rights clinic at Texas A&M University, who authored an amicus brief for more than 200 law professors also opposed to the ban. In this case, she says, the number of signatories helps. “It’s many, many tech companies that agree on what effect this will have on their industry.”
The main plaintiff in the case is the state of Washington, and technically the issue before the Ninth Circuit is whether to lift a temporary restraining order against enforcing the ban imposed by a federal judge in Seattle. Irreparable harm is one of several key factors judges look at when deciding such cases. The tech industry’s brief argues that the ban is an obstacle to conducting global business, a deterrent for foreign companies who want to launch US outposts, and an impediment to recruiting skilled employees from foreign countries. “The order will incentivize both immigration to and investment in foreign countries, rather than the US,” the brief says.

‘Courts do take the views of industry seriously in these cases.’

The original suit, meanwhile, presses the main constitutional argument. Washington’s attorney general argues Trump’s order violates the Constitution’s equal protection clause and the First Amendment right to freedom of religion. It infringes on the right to due process and violates the Immigration and Nationality Act of 1965, which bans discrimination on the basis of national origin, the suit claims.
The Ninth Circuit’s decision is expected within the week, but even that won’t likely decide whether the Trump administration’s ban is constitutional. It will simply decide whether the restraining order should hold. Either way, the case is probably headed to the US Supreme Court, where business has influenced major decisions in the past. “In the most important affirmative action case decided by the Supreme Court in recent years, Grutter v. Bollinger, a brief from the Business Roundtable and another from the military are known to have made a significant difference,” says Laurence Tribe, a professor at Harvard Law School. If the case reaches the Supreme Court before the Senate confirms Trump’s pick, Neil Gorsuch, to fill the late Justice Antonin Scalia’s seat, the eight current justices could split, and the Ninth Circuit’s decision would stand.
All of this is likely to progress at lightning speed, and the tech industry has inserted itself at the decisive moment, when the force of its arguments could have the greatest impact. Good thing Silicon Valley likes to move fast.