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Andrew Carpenter, Elyssa Klein, Mary Ann Krisa, Graham Molho, and Gloria Sprague each came to Albany Law School with their own goals in mind. What they didn’t expect was to be recruited for a project so far-reaching that, one year later, the words “filed in the Supreme Court of the United States” would be on their resumes.
It started in late January 2017, midway through their 1L year, when newly inaugurated President Donald Trump issued an executive order barring entry for people from several predominantly Muslim countries into the United States. At John F. Kennedy International Airport in New York City and airports across the country, lawyers mobilized to provide pro bono services to those affected by the travel ban.
“I was watching the news and was like, this sounds vaguely familiar,” Krisa said, connecting it to STORMING THE COURT, a book about a group of Yale law students—including now-Albany Law
Professor Ray Brescia—fighting the U.S. government’s executive branch on behalf of detainees at Guantánamo Bay, Cuba. “I emailed Professor Brescia and it actually was, in fact, very similar to what was happening in the book. A couple of days later I was in the cafeteria and Professor Brescia came up and said, ‘I was looking for you. Get some people together. Let’s have a meeting tonight.’ The next thing I know, we were knee-deep in legislative history.”
“I think a lot of people feel helpless but don’t realize the avenues that they have to enact change. This is kind of a beacon of that.”
Under the guidance of Professor Brescia, the group went to work providing research support for the law firm Davis Wright Tremaine, LLP, and the Constitutional Accountability Center, reviewing nearly seven decades worth of documents related to the Immigration and Nationality Act (INA).
“It was a lot of detective work, going through all of these pieces, all these records, trying to find something,” Klein said. “It was exciting. We were poring through the legislative history and trying to find anything that would support our position that this was unconstitutional—any quotes we could pull out from representatives when they were passing the amendments to the INA.”
Klein was the one who ultimately found the needle in the haystack: a discussion on a wartime provision in an early amendment to the INA, in which lawmakers debated the president’s authority to supersede immigration laws enacted by Congress.
That research was critical to the
amicus brief recently filed in the U.S. Supreme Court on behalf of 138 members of Congress. The brief, drafted by Davis Wright Tremaine, the Constitutional Accountability Center, and Professor Brescia, argued that the president’s first and subsequent revisions of the executive order on immigration violated both the INA and the Establishment Clause of the First Amendment to the U.S. Constitution.
“I’m assuming that the other people writing the brief expected it to be filed,” Molho said. “Whether we expected our piece to be added to the brief was a different matter.”
“We did a lot of our work together on a Google Doc,” added Krisa. “So there were the equivalent of electronic high-fives.”
The students came away with a sense of accomplishment—but also something greater.
“It’s kind of a testament to the power that people have over their government in some kind of way,” Carpenter said. “I think a lot of people feel helpless but don’t realize the avenues that they have to enact change. This is kind of a beacon of that. Thanks to Mary Ann, I was pulled into a project that mattered.”
“It’s true,” Krisa said. “Personally, where I was at that point, so disheartened after the election, it felt good to be able to channel some of that into a productive means of trying to promote a positive change, to reestablish our own sense of citizenry.”
A sixth student, Martha Mahoney, was named in
earlier versions of the brief filed in the U.S. Court of Appeals for the Fourth Circuit, the U.S. Court of Appeals for the Ninth Circuit, and the federal district court for the Eastern District of New York. Those filings were featured in the September-October 2017 issue of the American Bar Association’s
Student Lawyer magazine.
Asked if they had any other projects in the works, Molho said, “If Professor Brescia calls.” The others agreed—in unison: “If Professor Brescia calls.”
Read the amicus brief filed in U.S. Supreme Court