Int'l Refugee Assistance v. Donald Trump , 857 F.3d 554 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1351
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban
Justice Center, Inc., on behalf of itself; HIAS, INC., on behalf of itself and its
clients; MIDDLE EAST STUDIES ASSOCIATION OF NORTH AMERICA,
INC., on behalf of itself and its members; MUHAMMED METEAB;
PAUL HARRISON; IBRAHIM AHMED MOHOMED; JOHN DOES #1 & 3;
JANE DOE #2,
Plaintiffs - Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States;
DEPARTMENT OF HOMELAND SECURITY; DEPARTMENT OF STATE;
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; JOHN F.
KELLY, in his official capacity as Secretary of Homeland Security; REX W.
TILLERSON, in his official capacity as Secretary of State; DANIEL R. COATS, in
his official capacity as Director of National Intelligence,
Defendants - Appellants.
-----------------------------
STATE OF TEXAS; STATE OF ALABAMA; STATE OF ARIZONA; STATE
OF ARKANSAS; STATE OF FLORIDA; STATE OF KANSAS; STATE OF
LOUISIANA; STATE OF MONTANA; STATE OF OKLAHOMA; STATE OF
SOUTH CAROLINA; STATE OF SOUTH DAKOTA; STATE OF WEST
VIRGINIA; PHIL BRYANT, Governor of the State of Mississippi; AMERICAN
CENTER FOR LAW AND JUSTICE; SOUTHERN LEGAL FOUNDATION,
INC.; AMERICAN CIVIL RIGHTS UNION; IMMIGRATION REFORM LAW
INSTITUTE; U.S. JUSTICE FOUNDATION; CITIZENS UNITED; CITIZENS
UNITED FOUNDATION; ENGLISH FIRST FOUNDATION; ENGLISH FIRST;
PUBLIC ADVOCATE OF THE UNITED STATES; GUN OWNERS
FOUNDATION; GUN OWNERS OF AMERICA; CONSERVATIVE LEGAL
DEFENSE AND EDUCATION FUND; U.S. BORDER CONTROL
FOUNDATION; POLICY ANALYSIS CENTER; VICTOR WILLIAMS,
Amici Supporting Appellants,
INTERFAITH COALITION; COLLEGES AND UNIVERSITIES; T.A.;
COMMONWEALTH OF VIRGINIA; STATE OF MARYLAND; STATE OF
CALIFORNIA; STATE OF CONNECTICUT; STATE OF DELAWARE; STATE
OF ILLINOIS; STATE OF IOWA; STATE OF MAINE; STATE OF
MASSACHUSETTS; STATE OF NEW MEXICO; STATE OF NEW YORK;
STATE OF NORTH CAROLINA; STATE OF OREGON; STATE OF RHODE
ISLAND; STATE OF VERMONT; STATE OF WASHINGTON; DISTRICT OF
COLUMBIA; CITY OF CHICAGO; CITY OF LOS ANGELES; CITY OF NEW
YORK; CITY OF PHILADELPHIA; CITY COUNCIL OF NEW YORK;
MAYOR OF THE CITY OF NEW YORK; CITY OF AUSTIN; CITY OF
BOSTON; MARTIN J. WALSH, Mayor of Boston; TOWN OF CARRBORO;
JAMES A. DIOSSA, Mayor of Central Falls, Rhode Island; COOK COUTNY,
ILLINOIS; CITY OF GARY; CITY OF IOWA CITY; SVANTE L. MYRICK,
Mayor of Ithaca; CITY OF JERSEY CITY; CITY OF MADISON; CITY OF
MINNEAPOLIS; MONTGOMERY COUNTY; CITY OF NEW HAVEN; TONI
N. HARP, Mayor of New Haven; CITY OF OAKLAND; CITY OF PORTLAND;
CITY OF PROVIDENCE; JORGE O. ELORZA, Mayor of Providence; CITY OF
ST. LOUIS; CITY OF SAINT PAUL; CITY OF SAN FRANCISCO; COUNTY
OF SAN FRANCISCO; CITY OF SAN JOSE; SANTA CLARA COUNTY; CITY
OF SANTA MONICA; CITY OF SEATTLE; VILLAGE OF SKOKIE; CITY OF
SOUTH BEND; CITY OF TUCSON; CITY OF WEST HOLLYWOOD;
FORMER NATIONAL SECURITY OFFICIALS; MEMBERS OF THE
CLERGY; RIVERSIDE CHURCH IN THE CITY OF NEW YORK;
AMERICANS UNITED FOR SEPARATION OF CHURCH & STATE; BEND
THE ARC; A JEWISH PARTNERSHIP FOR JUSTICE; SOUTHERN POVERTY
LAW CENTER; AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE;
NEW YORK UNIVERSITY; RODERICK & SOLANGE MACARTHUR
JUSTICE CENTER; HOWARD UNIVERSITY SCHOOL OF LAW CIVIL
RIGHTS CLINIC; UNIVERSITY PROFESSORS & HIGHER EDUCATION
ASSOCIATIONS; INTERNATIONAL LAW SCHOLARS;
NONGOVERNMENTAL ORGANIZATIONS; ISMAIL ELSHIKH; ANT-
DEFAMATION LEAGUE; JEWISH COUNCIL FOR PUCLIC AFFAIRS;
UNION FOR REFORM JUDAISM; CENTRAL CONFERENCE OF AMERICAN
RABBIS; WOMEN OF REFORM JUDAISM; AMERICAN BAR
ASSOCIATION; MUSLIM JUSTICE LEAGUE; MUSLIM PUBLIC AFFAIRS
COUNCIL; ISLAMIC CIRCLE OF NORTH AMERICA; COUNCIL ON
AMERICAN-ISLAMIC RELATIONS; ASIAN AMERICANS ADVANCING
JUSTICE-ASIAN LAW CAUCUS; NATIONAL IMMIGRANT JUSTICE
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CENTER; ASISTA; AMERICANS FOR IMMIGRANT JUSTICE; FUTURES
WITHOUT VIOLENCE; NORTH CAROLINA COALITION AGAINST
DOMESTIC VIOLENCE; SANCTUARY FOR FAMILIES; MEMBERS OF
CONGRESS; SERVICE EMPLOYEES INTERNATIONAL UNION;
AMERICAN FEDERATION OF STATE,COUNTY & MUNICIPAL
EMPLOYEES, AMERICAN FEDERATION OF TEACHERS; HISTORY
PROFESSORS & SCHOLARS; LAWYERS' COMMITTEE FOR CIVIL RIGHTS
UNDER LAW; CENTER FOR REPRODUCTIVE RIGHTS; SOUTHERN
COALITION FOR SOCIAL JUSTICE; NATIONAL CENTER FOR LESBIAN
RIGHTS; JUDGE DAVID L. BAZELTON CENTER FOR MENTAL HEALTH
LAW; CHICAGO LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER
LAW; MISSISSIPPI CENTER FOR JUSTICE; WASHINGTON LAWYERS'
COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS; TECHNOLOGY
COMPANIES; FRED T. KOREMATSU CENTER FOR LAW & EQUALITY;
JAY HIRABAYASHI; HOLLY YASUI; KAREN KOREMATSU; CIVIL
RIGHTS ORGANIZATIONS; NATIONAL BAR ASSOCIATIONS OF COLOR;
FOUNDATION FOR THE CHILDREN OF IRAN; IRANIAN ALLIANCES
ACROSS BORDERS; MASSACHUSETTS TECHNOLOGY LEADERSHIP
COUNCIL; EPISCOPAL BISHOPS; IMMIGRATION LAW SCHOLARS &
CLINICIANS ON STATUTORY CLAIMS; FORMER FEDERAL
IMMIGRATION & HOMELAND SECURITY OFFICIALS;
CONSTITUTIONAL LAW SCHOLARS; MEDICAL INSTITUTIONS;
ADVOCACY ORGANIZATIONS; INDIVIDUAL PHYSICIANS; TAHIRIH
JUSTICE CENTER; ASIAN PACIFIC INSTITUTE ON GENDER-BASED
VIOLENCE; CASA DE ESPERANZA; NATIONAL DOMESTIC VIOLENCE
HOTLINE; INTERFAITH GROUP OF RELIGIOUS & INTERRELIGIOUS
ORGANIZATIONS; OXFAM AMERICA, INC.; CONSTITUTIONAL LAW
PROFESSORS; AMERICAN JEWISH COMMITTEE; MUSLIM RIGHTS,
PROFESSIONAL & PUBLIC HEALTH ORGANIZATIONS; CATO
INSTITUTE; NATIONAL ASSIAN PACIFIC AMERICAN BAR
ASSOCIATION; ASSOCIATION OF ART MUSEUM DIRECTORS;
AMERICAN ALLIANCE OF MUSEUMS; COLLEGE ART ASSOCIATION; 94
ART MUSEUMS; AMERICAN PROFESSIONAL SOCIETY ON THE ABUSE
OF CHILDREN; ADVOCATES FOR HUMAN RIGHTS; ASIAN LAW
ALLIANCE; ASIAN PACIFIC AMERICAN NETWORK OF OREGON; CASA;
COMMUNITY REFUGEE & IMMIGRATION SERVICES; INTEGRATED
REFUGEE & IMMIGRANT SERVICES; IMMIGRANT LAW CENTER OF
MINNESOTA; SOUTHEAST ASIA RESOURCE ACTION CENTER;
IMMIGRANT RIGHTS CLINIC OF WASHINGTON; SQUARE LEGAL
SERVICES, INC.; AIRPORT ATTORNEYS COALITION,
Amici Supporting Appellees.
3
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Theodore D. Chuang, District Judge. (8:17-cv-00361-TDC)
Argued: May 8, 2017 Decided: May 25, 2017
Before GREGORY, Chief Judge, and NIEMEYER, MOTZ, TRAXLER, KING, SHEDD,
AGEE, KEENAN, WYNN, DIAZ, FLOYD, THACKER, and HARRIS, Circuit Judges.
Affirmed in part, vacated in part by published opinion. Chief Judge Gregory wrote the
opinion, in which Judges Motz, King, Wynn, Diaz, Floyd, and Harris joined in full.
Judge Traxler wrote an opinion concurring in the judgment. Judge Keenan wrote an
opinion concurring in part and concurring in the judgment, in which Judge Thacker
joined except as to Part II.A.i. Judge Wynn wrote a concurring opinion. Judge Thacker
wrote a concurring opinion. Judge Niemeyer wrote a dissenting opinion, in which Judges
Shedd and Agee joined. Judge Shedd wrote a dissenting opinion, in which Judges
Niemeyer and Agee joined. Judge Agee wrote a dissenting opinion, in which Judges
Niemeyer and Shedd joined.
ARGUED: Jeffrey Bryan Wall, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellants. Omar C. Jadwat, AMERICAN CIVIL LIBERTIES
UNION, New York, New York, for Appellees. ON BRIEF: Edwin S. Kneedler, Deputy
Solicitor General, Chad A. Readler, Acting Assistant Attorney General, August E.
Flentje, Special Counsel to the Assistant Attorney General, Douglas N. Letter, Sharon
Swingle, H. Thomas Byron III, Lowell V. Sturgill, Jr., Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellants. Justin B. Cox, Atlanta, Georgia, Karen C. Tumlin, Nicholas Espίritu,
Melissa S. Keaney, Esther Sung, Marielena Hincapié, NATIONAL IMMIGRATION
LAW CENTER, Los Angeles, California; Lee Gelernt, Hina Shamsi, Hugh Handeyside,
Sarah L. Mehta, Spencer E. Amdur, New York, New York, Cecillia D. Wang, Cody H.
Wofsy, San Francisco, California, David Cole, Daniel Mach, Heather L. Weaver,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION, Washington, D.C.; David
Rocah, Deborah A. Jeon, Sonia Kumar, Nicholas Taichi Steiner, AMERICAN CIVIL
LIBERTIES UNION FOUNDATION OF MARYLAND, Baltimore, Maryland, for
Appellees. Ken Paxton, Attorney General, Jeffrey C. Mateer, First Assistant Attorney
General, Scott A. Keller, Solicitor General, J. Campbell Barker, Deputy Solicitor
General, Ari Cuenin, Assistant Solicitor General, OFFICE OF THE ATTORNEY
4
GENERAL OF TEXAS, Austin, Texas; Steven T. Marshall, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama; Mark
Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA,
Phoenix, Arizona; Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF ARKANSAS, Little Rock, Arkansas; Pamela Jo Bondi, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF FLORIDA, Tallahassee,
Florida; Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF KANSAS, Topeka, Kansas; Jeff Landry, Attorney General, OFFICE OF THE
ATTORNEY GENERAL OF LOUISIANA, Baton Rouge, Louisiana; Tim Fox, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MONTANA, Helena, Montana;
Mike Hunter, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
OKLAHOMA, Oklahoma City, Oklahoma; Alan Wilson, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina;
Marty J. Jackley, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
SOUTH DAKOTA, Pierre, South Dakota; Patrick Morrisey, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia;
Phil Bryant, Governor, OFFICE OF GOVERNOR PHIL BRYANT, Jackson,
Mississippi, for Amici States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas,
Louisiana, Montana, Oklahoma, South Carolina, South Dakota, West Virginia, and
Governor Phil Bryant of the State of Mississippi. Robert D. Fram, Alexandra P. Grayner,
Kathryn Bi, San Francisco, California, Kevin B. Collins, William E. Zapf, Ligia M.
Markman, Karun Tilak, Michael Baker, Andrew Guy, COVINGTON & BURLING LLP,
Washington, D.C., for Amicus Interfaith Coalition. Thomas J. Perrelli, Lindsay C.
Harrison, Erica L. Ross, Tassity S. Johnson, JENNER & BLOCK LLP, Washington,
D.C., for Amicus Colleges and Universities. Jay Alan Sekulow, Stuart J. Roth, Colby M.
May, Andrew J. Ekonomou, Jordon Sekulow, Craig L. Parshall, Matthew R. Clark,
Benjamin P. Sisney, Washington, D.C., Edward L. White III, Erik M. Zimmerman, Ann
Arbor, Michigan, Francis J. Manion, Geoffrey R. Surtees, AMERICAN CENTER FOR
LAW AND JUSTICE, New Hope, Kentucky, for Amicus American Center for Law and
Justice. Kimberly S. Hermann, SOUTHEASTERN LEGAL FOUNDATION, Marietta,
Georgia; William S. Consovoy, CONSOVOY MCCARTHY PARK PLLC, Arlington,
Virginia, for Amicus Southeastern Legal Foundation. Kenneth A. Klukowski,
AMERICAN CIVIL RIGHTS UNION, Alexandria, Virginia, for Amicus American Civil
Rights Union. Joseph W. Miller, UNITED STATES JUSTICE FOUNDATION,
Ramona, California, for Amicus U. S. Justice Foundation. Michael Boos, Washington,
D.C., for Amici Citizens United and Citizens United Foundation. William J. Olson,
Herbert W. Titus, Jeremiah L. Morgan, Robert J. Olson, WILLIAM J. OLSON, P.C.,
Vienna, Virginia, for Amici U.S. Justice Foundation, Citizens United, Citizens United
Foundation, English First Foundation, English First, Public Advocate of the United
States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense
and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center.
Christopher J. Hajec, Michael M. Hethmon, Elizabeth A. Hohenstein, Mark S. Venezia,
IMMIGRATION REFORM LAW INSTITUTE, Washington, D.C., for Amicus
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Immigration Reform Law Institute. Terrance Nolan, General Counsel and Secretary,
NEW YORK UNIVERSITY, New York, New York; Steven E. Obus, Seth D. Fiur,
Tiffany M. Woo, PROSKAUER ROSE LLP, New York, New York, for Amicus New
York University. Victor Williams, AMERICA FIRST LAWYERS ASSOCIATION,
Bethesda, Maryland, Amicus Pro Se. Richard D. Bernstein, WILLKIE FARR &
GALLAGHER LLP, Washington, D.C., for Amicus T.A. Harold Hongju Koh, Hope
Metcalf, Rule of Law Clinic, YALE LAW SCHOOL, New Haven, Connecticut; William
J. Murphy, John J. Connolly, ZUCKERMAN SPAEDER LLP, Baltimore, Maryland;
Jonathan M. Freiman, Tahlia Townsend, WIGGIN AND DANA LLP, New Haven,
Connecticut, for Amicus Former National Security Officials. Amir H. Ali, RODERICK
& SOLANGE MACARTHUR JUSTICE CENTER, Washington, D.C., for Amicus The
Roderick and Solange MacArthur Justice Center. Elisabeth C. Frost, Amanda R. Callais,
Washington, D.C., Joseph M. McMillan, Michelle L. Maley, PERKINS COIE LLP,
Seattle, Washington; Aaron X. Fellmeth, ARIZONA STATE UNIVERSITY SANDRA
DAY O’CONNOR COLLEGE OF LAW, Phoenix, Arizona; Jonathan Hafetz, SETON
HALL UNIVERSITY SCHOOL OF LAW, Newark, New Jersey, for Amici International
Law Scholars and Non-Governmental Organizations. Neal Kumar Katyal, Colleen Roh
Sinzdak, Mitchell P. Reich, Elizabeth Hagerty, Washington, D.C., Sara Solow,
Alexander B. Bowerman, Philadelphia, Pennsylvania, Thomas P. Schmidt, HOGAN
LOVELLS US LLP, New York, New York, for Amicus Dr. Ismail Elshikh. David E.
Mills, Alyssa T. Saunders, COOLEY LLP, Washington, D.C.; John B. Harris, Jeremy
Goldman, Caren Decter, Jessica Smith, Rayna Lopyan, Lily Landsman-Roos, Lakendra
Barajas, FRANKFURT KURNIT KLEIN & SELZ, P.C., New York, New York, for
Amici Anti-Defamation League, Jewish Council for Public Affairs, Union for Reform
Judaism, Central Conference of American Rabbis, and Women of Reform Judaism.
Doron F. Ezickson, Washington, D.C., Steven M. Freeman, Lauren A. Jones, Melissa
Garlick, Michael Lieberman, ANTI-DEFAMATION LEAGUE, New York, New York,
for Amicus Anti-Defamation League. David Bohm, DANNA MCKINTRICK, P.C., St.
Louis, Missouri, for Amicus Jewish Council for Public Affairs. Ryan P. Poscablo, Brian
Neff, Eliberty Lopez, New York, New York, Nick Kahlon, RILEY SAFER HOLMES &
CANCILA, LLP, Chicago, Illinois; Edward N. Siskel, Corporation Counsel, Benna Ruth
Solomon, Deputy Corporation Counsel, CITY OF CHICAGO, Chicago, Illinois, for
Amicus City of Chicago. Zachary W. Carter, Corporation Counsel, CITY OF NEW
YORK, New York, New York, for Amicus Mayor and City Council of New York. Sozi
Pedro Tulante, City Solicitor, CITY OF PHILADELPHIA LAW DEPARTMENT,
Philadelphia, Pennsylvania, for Amicus City of Philadelphia. Anne L. Morgan, City
Attorney, CITY OF AUSTIN LAW DEPARTMENT, Austin, Texas, for Amicus City of
Austin. Eugene L. O’Flaherty, Corporation Counsel, CITY OF BOSTON, Boston,
Massachusetts, for Amici City of Boston and Mayor Martin J. Walsh. G. Nicholas
Herman, General Counsel, THE BROUGH LAW FIRM, PLLC, Chapel Hill, North
Carolina, for Amicus Town of Carrboro. Matthew T. Jerzyk, City Solicitor, OFFICE OF
THE CITY SOLICITOR, Central Falls, Rhode Island, for Amicus James A. Diossa.
Kimberly M. Foxx, States Attorney for Cook County, Office of the States Attorney,
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Chicago, Illinois, for Amicus Cook County, Illinois. Michael N. Feuer, City Attorney,
CITY ATTORNEY’S OFFICE FOR THE CITY OF LOS ANGELES, Los Angeles,
California, for Amicus City of Los Angeles. Gregory L. Thomas, City Attorney, CITY
ATTORNEY’S OFFICE, Gary, Indiana, for Amicus City of Gary. Eleanor M. Dilkes,
City Attorney, CITY ATTORNEY’S OFFICE, Iowa City, Iowa, for Amicus City of Iowa
City. Aaron O. Lavine, City Attorney, CITY ATTORNEY’S OFFICE, Ithaca, New
York, for Amicus Svante L. Myrick. Jeremy Farrell, Corporation Counsel, JERSEY
CITY LAW DEPARTMENT, Jersey City, New Jersey, for Amicus City of Jersey City.
Michael P. May, City Attorney, CITY ATTORNEY’S OFFICE, Madison, Wisconsin, for
Amicus City of Madison. Susan L. Segal, City Attorney, CITY ATTORNEY’S OFFICE,
Minneapolis, Minnesota, for Amicus City of Minneapolis. Marc P. Hansen, County
Attorney, COUNTY ATTORNEY’S OFFICE, Rockville, Maryland, for Amicus
Montgomery County. John Rose, Jr., Corporation Counsel, CITY OF NEW HAVEN,
New Haven, Connecticut, for Amici City of New Haven and Mayor Toni N. Harp.
Barbara J. Parker, City Attorney, CITY ATTORNEY’S OFFICE, Oakland, California,
for Amicus Oakland. Tracy Reeve, City Attorney, CITY ATTORNEY’S OFFICE,
Portland, Oregon, for Amicus Portland. Jeffrey Dana, City Solicitor, OFFICE OF THE
CITY SOLICITOR, Providence, Rhode Island, for Amici City of Providence and Mayor
Jorge O. Elorza. Michael A. Garvin, City Counselor, CITY OF ST. LOUIS LAW
DEPARTMENT, St Louis, Missouri, for City of St. Louis. Samuel J. Clark, City
Attorney, CITY ATTORNEY’S OFFICE, Saint Paul, Minnesota, for Amicus City of
Saint Paul. Dennis J. Herrera, City Attorney, CITY ATTORNEY’S OFFICE, San
Francisco, California, for Amici City and County of San Francisco. Richard Doyle, City
Attorney, CITY ATTORNEY’S OFFICE, San José, California, for Amicus City of San
José. James R. Williams, County Counsel, OFFICE OF THE COUNTY COUNSEL, San
José, California, for Amicus Santa Clara County. Joseph Lawrence, Interim City
Attorney, CITY OF SANTA MONICA, Santa Monica, California, for Amicus City of
Santa Monica. Peter S. Holmes, Seattle City Attorney, CITY ATTORNEY’S OFFICE,
Seattle, Washington, for Amicus City of Seattle. Michael M. Lorge, Corporation
Counsel, VILLAGE OF SKOKIE, Skokie, Illinois, for Amicus Village of Skokie. Cristal
Brisco, Corporation Counsel, CITY OF SOUTH BEND DEPARTMENT OF LAW,
South Bend Indiana, for Amicus South Bend. Michael Rankin, City Attorney, CITY
ATTORNEY’S OFFICE, Tucson, Arizona, for Amicus City of Tucson. Michael Jenkins,
JENKINS & HOGIN, LLP, Manhattan Beach, California, for Amicus West Hollywood.
Sidney S. Rosdeitcher, Aidan Synnott, Erin J. Morgan, Arianna Markel, Jared S. Stein,
New York, New York; Linda A. Klein, President, AMERICAN BAR ASSOCIATION,
Chicago, Illinois, for Amicus American Bar Association. Amy Briggs, John W.
McGuinness, Sirena Castillo, Matthew Bottomly, Olufunmilayo Showole, Ketakee Kane,
Benjamin G. Shatz, MANATT, PHELPS & PHILLIPS, LLP, Los Angeles, California,
for Amici Muslim Justice League, Muslim Public Affairs Council, Islamic Circle of
North America, Council on American-Islamic Relations, California, and Asian
Americans Advancing Justice-Asian Law Caucus. Mark R. Herring, Attorney General,
Stuart A. Raphael, Solicitor General, Trevor S. Cox, Deputy Solicitor General, Matthew
7
R. McGuire, Assistant Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia; Brian E. Frosh, Attorney General, Steven M. Sullivan,
Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland; Xavier Becerra, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF CALIFORNIA, Sacramento, California; Ellen F. Rosenblum, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF OREGON, Salem, Oregon;
George Jepson, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
CONNECTICUT, Hartford, Connecticut; Matthew P. Denn, Attorney General, OFFICE
OF THE ATTORNEY GENERAL OF DELAWARE, Wilmington, Delaware; Lisa
Madigan, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ILLINOIS,
Chicago, Illinois; Tom Miller, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF IOWA, Des Moines, Iowa; Janet T. Mills, Attorney General, OFFICE OF
THE ATTORNEY GENERAL OF MAINE, Augusta, Maine; Maura Healey, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF MASSACHUSETTS, Boston,
Massachusetts; Hector Balderas, Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF NEW MEXICO, Santa Fe, New Mexico; Eric T. Schneiderman, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF NEW YORK, New York, New
York; Josh Stein, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF
NORTH CAROLINA, Raleigh, North Carolina; Peter F. Kilmartin, Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF RHODE ISLAND, Providence, Rhode
Island; Thomas J. Donovan, Jr., Attorney General, OFFICE OF THE ATTORNEY
GENERAL OF VERMONT, Montpelier, Vermont; Robert W. Ferguson, Attorney
General, OFFICE OF THE ATTORNEY GENERAL OF WASHINGTON, Olympia,
Washington; Karl A. Racine, Attorney General, OFFICE OF THE ATTORNEY
GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Amici
Commonwealth of Virginia, States of Maryland, California, Connecticut, Delaware,
Illinois, Iowa, Maine, Massachusetts, New Mexico, New York, North Carolina, Oregon,
Rhode Island, Vermont, and Washington, and the District of Columbia. Katherine K.
Huang, Carlos A. Singer, HUANG YBARRA SINGER & MAY LLP, Los Angeles,
California, for Amicus History Professors and Scholars. Charles Roth, NATIONAL
IMMIGRANT JUSTICE CENTER, Chicago, Illinois; Robert N. Hochman, Nathaniel C.
Love, SIDLEY AUSTIN LLP, Chicago, Illinois, for Amicus National Immigrant Justice
Center. Gail Pendleton, ASISTA, Suffield, Connecticut, for Amicus ASISTA. Linda A.
Seabrook, General Counsel, FUTURES WITHOUT VIOLENCE, Washington, D.C., for
Amicus Futures Without Violence. Carmen Maria Rey, SANCTUARY FOR FAMILIES
CENTER FOR BATTERED WOMEN’S LEGAL SERVICES, New York, New York,
for Amicus Sanctuary for Families. Jennie Santos-Bourne, AMERICAN FOR
IMMIGRANT JUSTICE, Miami, Florida, for Amicus Americans for Immigrant Justice.
Amily K. McCool, NORTH CAROLINA COALITION AGAINST DOMESTIC
VIOLENCE, Durham, North Carolina, for Amicus North Carolina Coalition Against
Domestic Violence. Peter Karanjia, Jason Harrow, Washington, D.C., Victor A. Kovner,
DAVIS WRIGHT TREMAINE LLP, New York, New York; Elizabeth B. Wydra,
Brianne J. Gorod, David H. Gans, CONSTITUTIONAL ACCOUNTABILITY CENTER,
8
Washington, D.C.; Raymond H. Brescia, Associate Professor of Law, ALBANY LAW
SCHOOL, Albany, New York, for Amicus 165 Members of Congress. Lynne Bernabei,
Alan R. Kabat, BERNABEI & KABAT, PLLC, Washington, D.C.; Ted G. Dane,
Thomas P. Clancy, MUNGER, TOLLES & OLSON LLP, Los Angeles, California, for
Amici Lawyers’ Committee for Civil Rights Under Law, Center for Reproductive Rights,
Southern Coalition for Social Justice, National Center for Lesbian Rights, Judge David L.
Bazelon Center for Mental Health Law, Chicago Lawyers’ Committee for Civil Rights
Under Law, Mississippi Center for Justice, and The Washington Lawyers’ Committee for
Civil Rights and Urban Affairs. Andrew J. Pincus, Paul W. Hughes, MAYER BROWN
LLP, Washington, D.C., for Amicus Technology Companies. Robert S. Chang, Fred T.
Korematsu Center for Law and Equality, SEATTLE UNIVERSITY SCHOOL OF LAW,
Seattle, Washington; Eric Yamamoto, Fred T. Korematsu Professor of Law and Social
Justice, UNIVERSITY OF HAWAII WILLIAM S. RICHARDSON SCHOOL OF LAW,
Honolulu, Hawaii; Pratik A. Shah, Martine E. Cicconi, Washington, D.C., Jessica M.
Weisel, Los Angeles, California, Robert A. Johnson, Alice Hsu, AKIN GUMP
STRAUSS HAUER & FELD LLP, New York, New York, for Amici The Fred T.
Korematsu Center for Law and Equality, Jay Hirabayashi, Holly Yasui, Karen
Korematsu, Civil Rights Organizations, and National Bar Associations of Color. Kevin
P. Martin, Nicholas K. Mitrokostas, William B. Brady, Joshua M. Daniels, Alicia Rubio,
Eileen L. Morrison, GOODWIN PROCTER LLP, Boston, Massachusetts, for Amici The
Foundation for the Children of Iran and Iranian Alliances Across Borders. Nicole G.
Berner, Claire Prestel, Deborah L. Smith, Leo Gertner, SERVICE EMPLOYEES
INTERNATIONAL UNION, Washington, D.C.; Steve W. Berman, HAGENS BERMAN
SOBOL SHAPIRO LLP, Seattle, Washington, for Amicus Service Employees
International Union. Judith Rivlin, AMERICAN FEDERATION OF STATE, COUNTY
AND MUNICIPAL EMPLOYEES, Washington, D.C., for Amicus American Federation
of State, County and Municipal Employees. David J. Strom, Channing M. Cooper,
AMERICAN FEDERATION OF TEACHERS, Washington, D.C., for American
Federation of Teachers. Eli Glasser, Fort Lauderdale, Florida, Michael J. Gottlieb,
Joshua Riley, Isra Bhatty, J. Wells Harrell, Cain Norris, Aaron E. Nathan, BOIES
SCHILLER FLEXNER LLP, Washington, D.C., for Amicus Former Federal Immigration
and Homeland Security Officials. Michael R. Scott, Amit D. Ranade, Lisa J. Chaiet
Rahman, HILLIS CLARK MARTIN & PETERSON P.S., Seattle, Washington, for
Amicus Episcopal Bishops. Joshua Matz, ROBBINS, RUSSELL, ENGLERT, ORSECK,
UNTEREINER & SAUBER LLP, Washington, D.C., for Amicus Constitutional Law
Scholars. Scott L. Winkelman, Luke van Houwelingen, Avi Rutschman, Justin
Kingsolver, CROWELL & MORING LLP, Washington, D.C., for Amici Tahirih Justice
Center, The Asian Pacific Institute on Gender-Based Violence, Casa De Esperanza, and
The National Domestic Violence Hotline. Jennifer K. Brown, Amanda Aikman, New
York, New York, Bradley D. Wine, Sandeep N. Nandivada, McLean, Virginia, Marc A.
Hearron, Washington, D.C., Purvi G. Patel, MORRISON & FOERSTER LLP, Los
Angeles, California, for Amicus Interfaith Group of Religious and Interreligious
Organizations. Christopher Mortweet, Menlo Park, California, Richard P. Bress, Elana
9
Nightingale Dawson, Alexandra P. Shechtel, LATHAM & WATKINS LLP, Washington,
D.C., for Amicus Oxfam America, Inc. Kristi L. Graunke, Gillian Gillers, SOUTHERN
POVERTY LAW CENTER, Atlanta, Georgia; Richard B. Katskee, Eric Rothschild,
Andrew L. Nellis, Kelly M. Percival, Bradley Girard, AMERICANS UNITED FOR
SEPARATION OF CHURCH AND STATE, Washington, D.C., for Amici Members of
the Clergy, The Riverside Church in the City of New York, Americans United for
Separation of Church and State, Bend the Arc, A Jewish Partnership for Justice, and The
Southern Poverty Law Center. Catherine Y. Kim, UNIVERSITY OF NORTH
CAROLINA, Chapel Hill, North Carolina; Judith Resnik, YALE LAW SCHOOL, New
Haven, Connecticut; Fred A. Rowley, Jr., John L. Schwab, Los Angeles, California,
Aaron D. Pennekamp, MUNGER, TOLLES & OLSON, LLP, San Francisco, California,
for Amicus Constitutional Law Professors. Marc D. Stern, AMERICAN JEWISH
COMMITTEE, New York, New York; Adam S. Lurie, Vijaya R. Palaniswamy, Caitlin
K. Potratz, Sean M. Solomon, LINKLATERS LLP, Washington, D.C., for Amicus The
American Jewish Committee. Daniel Braun, Peter Jaffe, Lauren Kaplin, Washington,
D.C., David Y. Livshiz, Karen Wiswall, FRESHFIELDS BRUCKHAUS DERINGER
US LLP, New York, New York, for Amicus Cato Institute. Farhana Khera, Johnathan J.
Smith, Aziz Huq, MUSLIM ADVOCATES, Oakland, California; Robert A. DeRise,
Washington, D.C., Anton Ware, ARNOLD & PORTER KAYE SCHOLER LLP, San
Francisco, California, for Amicus Muslim Rights, Professional and Public Health
Organizations. Avi Gesser, Kelsey Clark, Joseph Garmon, Alex Messiter, Jennifer
Prevete, Ilan Stein, DAVIS POLK & WARDWELL LLP, New York, New York, for
Amici The Association of Art Museum Directors, The American Alliance of Museums,
The College Art Association, and 94 Art Museums. Mary Kelly Persyn, PERSYN LAW
& POLICY, San Francisco, California, for Amicus American Professional Society on the
Abuse of Children. Alina Das, WASHINGTON SQUARE LEGAL SERVICES, New
York, New York, for Amici Advocates for Human Rights, Asian Law Alliance, Asian
Pacific American Network of Oregon, CASA, Community Refugee & Immigration
Services, Immigrant Law Center of Minnesota, Immigrant Rights Clinic of Washington
Square Legal Services, Inc., Integrated Refugee and Immigrant Services, and The
Southeast Asia Resource Action Center. Michael B. Roberts, Karen Lee Lust, Kristin C.
Davis, REED SMITH LLP, Washington, D.C.; Sirine Shebaya, Washington, D.C.;
Mirriam Seddiq, SEDDIQ LAW FIRM, Upper Marlboro, Maryland, for Amicus Airport
Attorneys Coalition. Yolanda C. Rondon, AMERICAN-ARAB ANTI-
DISCRIMINATION COMMITTEE, Washington, D.C., for Amicus American-Arab
Anti-Discrimination Committee. Gare A. Smith, Michael B. Keating, Kristyn M.
DeFilipp, Christopher E. Hart, Daniel L. McFadden, FOLEY HOAG LLP, Washington,
D.C., for Amicus Massachusetts Technology Leadership Council, Inc. Tina R.
Matsuoka, Navdeep Singh, Meredith S.H. Higashi, Rachana Pathak, Albert Giang,
NATIONAL ASIAN PACIFIC AMERICAN BAR ASSOCIATION, Washington, D.C.;
Joshua David Rogaczewski, James W. Kim, Philip J. Levine, MCDERMOTT WILL &
EMERY LLP, Washington, D.C., for Amicus National Asian Pacific American Bar
Association. Fatma E. Marouf, Professor of Law, Director, Immigrant Rights Clinic,
10
TEXAS A&M UNIVERSITY SCHOOL OF LAW, Fort Worth, Texas, for Amicus
Immigration Law Scholars and Clinicians on Statutory Claims. Manvin S. Mayell,
Gregory J. Wallance, Steven G. Tepper, Jessica Heller, Colleen Lima, G. Alex Sinha,
Thomas A. Bird, ARNOLD & PORTER KAYE SCHOLER LLP, New York, New York,
for Amici Medical Institutions, Advocacy Organizations, and Individual Physicians.
Karla McKanders, Civil Rights Clinic, Darin Johnson, Visiting Professor, HOWARD
UNIVERSITY SCHOOL OF LAW, Washington, D.C., for Amicus University Professors
and Higher Education Associations.
11
GREGORY, Chief Judge 1:
The question for this Court, distilled to its essential form, is whether the
Constitution, as the Supreme Court declared in Ex parte Milligan, 71 U.S. (4 Wall.) 2,
120 (1866), remains “a law for rulers and people, equally in war and in peace.” And if
so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks
with vague words of national security, but in context drips with religious intolerance,
animus, and discrimination. Surely the Establishment Clause of the First Amendment yet
stands as an untiring sentinel for the protection of one of our most cherished founding
principles—that government shall not establish any religious orthodoxy, or favor or
disfavor one religion over another. Congress granted the President broad power to deny
entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the
President wields it through an executive edict that stands to cause irreparable harm to
individuals across this nation. Therefore, for the reasons that follow, we affirm in
substantial part the district court’s issuance of a nationwide preliminary injunction as to
Section 2(c) of the challenged Executive Order.
1
Judges Motz, King, Wynn, Diaz, Floyd, and Harris join this opinion in full,
Judge Traxler concurs in the judgment, and Judges Keenan and Thacker concur in
substantial part and concur in the judgment.
12
I.
A.
In the early evening of January 27, 2017—seven days after taking the oath of
office—President Donald J. Trump signed Executive Order 13769, “Protecting the
Nation From Foreign Terrorist Entry Into the United States” (“EO-1” or “First Executive
Order”), 82 Fed. Reg. 8977 (Jan. 27, 2017). Referencing the past and present failings of
the visa-issuance process, the First Executive Order had the stated purpose of
“protect[ing] the American people from terrorist attacks by foreign nationals.” EO-1,
Preamble. To protect Americans, EO-1 explained, the United States must ensure that it
does not admit foreign nationals who “bear hostile attitudes” toward our nation and our
Constitution, who would “place violent ideologies over American law,” or who “engage
in acts of bigotry or hatred” (such as “‘honor’ killings”). Id. § 1.
To that end, the President invoked his authority under 8 U.S.C. § 1182(f) and
immediately suspended for ninety days the immigrant and nonimmigrant entry of foreign
aliens from seven predominantly Muslim countries: Iraq, Iran, Libya, Somalia, Sudan,
Syria, and Yemen. 2 See EO-1, § 3(c). During the ninety-day period, the Secretary of
Homeland Security, Secretary of State, and Director of National Intelligence were to
“immediately conduct a review to determine the information needed from any country” to
assess whether individuals seeking entry from those countries posed a national security
2
According to the Pew Research Center, Iraq’s population is 99% Muslim, Iran’s
is 99.5%, Libya’s is 96.6%, Sudan’s is 90.7%, Somalia’s is 99.8%, Syria’s is 92.8%, and
Yemen’s is 99.1%. See Pew Res. Ctr., The Global Religious Landscape 45–50 (2012).
13
threat. Those cabinet officers were to deliver a series of reports updating the President as
to that review and the implementation of EO-1. See id. § 3(a)–(b), (h).
The First Executive Order also placed several constraints on the admission of
refugees into the country. It reduced the number of refugees to be admitted in fiscal year
2017 from 110,000 to 50,000 and barred indefinitely the admission of Syrian refugees.
Id. § 5(c)–(d). It further ordered the Secretary of State to suspend for 120 days the
United States Refugee Admissions Program (“USRAP”). Id. § 5(a). Upon resumption of
USRAP, EO-1 directed the Secretary of State to “prioritize refugee claims made by
individuals on the basis of religious-based persecution, provided that the religion of the
individual is a minority religion in the individual’s country of nationality.” Id. § 5(b).
Individuals, organizations, and states across the nation challenged the First
Executive Order in federal court. A judge in the Western District of Washington granted
a Temporary Restraining Order (“TRO”), enjoining enforcement nationwide of Sections
3(c), 5(a)–(c), and 5(e). See Washington v. Trump, No. C17-0141JLR, 2017 WL 462040,
at *2 (W.D. Wash. Feb. 3, 2017). The Ninth Circuit subsequently denied the
Government’s request to stay the TRO pending appeal and declined to “rewrite” EO-1 by
narrowing the TRO’s scope, noting that the “political branches are far better equipped”
for that task. Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (per curiam).
At the Ninth Circuit’s invitation, and in an effort to avoid further litigation concerning the
First Executive Order, the President enacted a second order (“EO-2” or “Second
Executive Order”) on March 6, 2017. Exec. Order No. 13780, “Protecting the Nation
14
from Foreign Terrorist Entry Into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017).
The Second Executive Order revoked and replaced the First Executive Order. Id. § 1(i).
Section 2(c) of EO-2—“Temporary Suspension of Entry for Nationals of
Countries of Particular Concern During Review Period”—is at the heart of the dispute in
this case. This section reinstated the ninety-day suspension of entry for nationals from
six countries, eliminating Iraq from the list, but retaining Iran, Libya, Somalia, Sudan,
Syria, and Yemen (the “Designated Countries”). EO-2, § 2(c). The President, again
invoking 8 U.S.C. § 1182(f) and also citing 8 U.S.C. § 1185(a), declared that the
“unrestricted entry” of nationals from these countries “would be detrimental to the
interests of the United States.” Id. 3
The Second Executive Order, unlike its predecessor, states that nationals from the
Designated Countries warrant “additional scrutiny” because “the conditions in these
3
Section 2(c) reads in full:
To temporarily reduce investigative burdens on relevant agencies
during the review period described in subsection (a) of this section,
to ensure the proper review and maximum utilization of available
resources for the screening and vetting of foreign nationals, to ensure
that adequate standards are established to prevent infiltration by
foreign terrorists, and in light of the national security concerns
referenced in section 1 of this order, I hereby proclaim, pursuant to
sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a),
that the unrestricted entry into the United States of nationals of Iran,
Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to
the interests of the United States. I therefore direct that the entry
into the United States of nationals of those six countries be
suspended for 90 days from the effective date of this order, subject
to the limitations, waivers, and exceptions set forth in sections 3 and
12 of this order.
15
countries present heightened threats.” Id. § 1(d). In justifying the selection of the
Designated Countries, EO-2 explains, “Each of these countries is a state sponsor of
terrorism, has been significantly compromised by terrorist organizations, or contains
active conflict zones.” 4 Id. The Second Executive Order states that “until the assessment
of current screening and vetting procedures required by section 2 of this order is
completed, the risk of erroneously permitting entry of a national of one of these countries
who intends to commit terrorist acts or otherwise harm the national security of the United
States is unacceptably high.” Id. § 1(f).
The Second Executive Order also provides brief descriptions of the conditions in
each of the Designated Countries. It notes, for instance, that “Sudan has been designated
as a state sponsor of terrorism since 1993 because of its support for international terrorist
groups, including Hizballah and Hamas[, and] . . . elements of core al-Qa’ida and ISIS-
linked terrorist groups remain active in the country.” Id. § 1(e)(iv). The Second
Executive Order further states that “[s]ince 2001, hundreds of persons born abroad have
4
As the Government notes, nationals from these six countries are ineligible for the
Visa Waiver Program, which currently allows nationals of thirty-eight countries seeking
temporary admission to the United States for tourism or certain business purposes to
enter without a visa. See 8 U.S.C. § 1187(a). The program excludes nationals of or
aliens who have recently visited Iraq or Syria and nationals of or recent visitors to
countries designated as state sponsors of terror (Iran, Sudan, and Syria). See 8 U.S.C.
§ 1187(a)(12); see U.S. Dep’t of State, U.S. Visa Waiver Program (Apr. 6, 2016),
https://www.dhs.gov/visa-waiver-program (saved as ECF opinion attachment). It also
excludes recent visitors to Libya, Somalia, and Yemen. U.S. Dep’t of Homeland
Security, DHS Announces Further Travel Restrictions for the Visa Waiver Program (Feb.
18, 2016), https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-
restrictions-visa-waiver-program (saved as ECF opinion attachment). Thus, nationals
from the six countries identified in Section 2(c), like nationals from the vast majority of
countries, must undergo the individualized vetting of the regular visa process.
16
been convicted of terrorism-related crimes in the United States.” Id. § 1(h). It provides
the following examples: two Iraqi refugees who were convicted of terrorism-related
offenses in January 2013, and a naturalized citizen who came to this country as a child
refugee from Somalia and who was sentenced for terrorism-related offenses in October
2014. Id. The Second Executive Order does not include any examples of individuals
from Iran, Libya, Sudan, Syria, or Yemen committing terrorism-related offenses in the
United States.
The Second Executive Order clarifies that the suspension of entry applies to
foreign nationals who (1) are outside the United States on its effective date of March 16,
2017, (2) do not have a valid visa on that date, and (3) did not have a valid visa on the
effective date of EO-1—January 27, 2017. Id. § 3(a). Section 2(c) does not bar entry of
lawful permanent residents, dual citizens traveling under a passport issued by a non-
banned country, asylees, or refugees already admitted to the United States. Id. § 3(b).
The Second Executive Order also includes a provision that permits consular officers, in
their discretion, to issue waivers on a case-by-case basis to individuals barred from
entering the United States. Id. § 3(c).
The Second Executive Order retains some—but not all—of the First Executive
Order’s refugee provisions. It again suspends USRAP for 120 days and decreases the
number of refugee admissions for fiscal year 2017 by more than half, id. § 6(a), but it
does not include the indefinite ban on Syrian refugees. The Second Executive Order also
eliminates the provision contained in EO-1 that mandated preferential treatment of
religious minorities seeking refugee status. It explains that this provision “applied to
17
refugees from every nation, including those in which Islam is a minority religion, and it
applied to minority sects within a religion.” Id. § 1(b)(iv). It further explains that EO-1
was “not motivated by animus toward any religion,” but rather was designed to protect
religious minorities. Id.
Shortly before the President signed EO-2, an unclassified, internal report from the
Department of Homeland Security (“DHS”) Office of Intelligence and Analysis dated
March 2017 was released to the public. See J.A. 425–31. The report found that most
foreign-born, U.S.-based violent extremists became radicalized many years after entering
the United States, and concluded that increased screening and vetting was therefore
unlikely to significantly reduce terrorism-related activity in the United States. J.A. 426.
According to a news article, a separate DHS report indicated that citizenship in any
country is likely an unreliable indicator of whether a particular individual poses a terrorist
threat. J.A. 424. In a declaration considered by the district court, ten former national
security, foreign policy, and intelligence officials who previously served in the White
House, State Department, DHS, and Central Intelligence Agency—four of whom were
aware of intelligence related to terrorist threats as of January 20, 2017—advised that
“[t]here is no national security purpose for a total ban on entry for aliens from the
[Designated Countries].” J.A. 91.
B.
The First and Second Executive Orders were issued against a backdrop of public
statements by the President and his advisors and representatives at different points in
18
time, both before and after the election and President Trump’s assumption of office. We
now recount certain of those statements.
On December 7, 2015, then-candidate Trump published a “Statement on
Preventing Muslim Immigration” on his campaign website, which proposed “a total and
complete shutdown of Muslims entering the United States until our country’s
representatives can figure out what is going on.” J.A. 346. 5 That same day, he
5
Trump’s “Statement on Preventing Muslim Immigration” reads in full:
(New York, NY) December 7th, 2015, -- Donald J. Trump is calling
for a total and complete shutdown of Muslims entering the United
States until our country’s representatives can figure out what is
going on. According to Pew Research, among others, there is great
hatred towards Americans by large segments of the Muslim
population. Most recently, a poll from the Center for Security Policy
released data showing “25% of those polled agreed that violence
against Americans here in the United States is justified as a part of
the global jihad” and 51% of those polled “agreed that Muslims in
America should have the choice of being governed according to
Shariah.” Shariah authorizes such atrocities as murder against non-
believers who won’t convert, beheadings and more unthinkable acts
that pose great harm to Americans, especially women.
Mr. Trump stated, “Without looking at the various polling data, it is
obvious to anybody the hatred is beyond comprehension. Where this
hatred comes from and why we will have to determine. Until we are
able to determine and understand this problem and the dangerous
threat it poses, our country cannot be the victims of the horrendous
attacks by people that believe only in Jihad, and have no sense of
reason or respect of human life. If I win the election for President,
we are going to Make America Great Again. –Donald J. Trump
J.A. 346. The district court noted that, as of February 12, 2017, this statement remained
on Trump’s campaign website. Int’l Refugee Assistance Project v. Trump, No. TDC-17-
0361, 2017 WL 1018235, at *4 (D. Md. Mar. 16, 2017). The statement was subsequently
(Continued)
19
highlighted the statement on Twitter, “Just put out a very important policy statement on
the extraordinary influx of hatred & danger coming into our country. We must be
vigilant!” J.A. 470. And Trump read from the statement at a campaign rally in Mount
Pleasant, South Carolina, that evening, where he remarked, “I have friends that are
Muslims. They are great people—but they know we have a problem.” J.A. 472.
In an interview with CNN on March 9, 2016, Trump professed, “I think Islam
hates us,” J.A. 516, and “[W]e can’t allow people coming into the country who have this
hatred,” J.A. 517. Katrina Pierson, a Trump spokeswoman, told CNN that “[w]e’ve
allowed this propaganda to spread all through the country that [Islam] is a religion of
peace.” J.A. 518. In a March 22, 2016 interview with Fox Business television, Trump
reiterated his call for a ban on Muslim immigration, claiming that this proposed ban had
received “tremendous support” and stating, “we’re having problems with the Muslims,
and we’re having problems with Muslims coming into the country.” J.A. 522. “You
need surveillance,” Trump explained, and “you have to deal with the mosques whether
you like it or not.” J.A. 522.
Candidate Trump later recharacterized his call to ban Muslims as a ban on
nationals from certain countries or territories. On July 17, 2016, when asked about a
tweet that said, “Calls to ban Muslims from entering the U.S. are offensive and
unconstitutional,” then-candidate Trump responded, “So you call it territories. OK?
removed from the campaign website shortly before the May 8, 2017 oral argument in this
case.
20
We’re gonna do territories.” J.A. 798. He echoed this statement a week later in an
interview with NBC’s Meet the Press. When asked whether he had “pulled back” on his
“Muslim ban,” Trump replied, “We must immediately suspend immigration from any
nation that has been compromised by terrorism until such time as proven vetting
mechanisms have been put in place.” J.A. 480. Trump added, “I actually don’t think it’s
a rollback. In fact, you could say it’s an expansion. I’m looking now at territories.
People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim.
Remember this. And I’m okay with that, because I’m talking territory instead of
Muslim.” J.A. 481. Trump continued, “Our Constitution is great. . . . Now, we have a
religious, you know, everybody wants to be protected. And that’s great. And that’s the
wonderful part of our Constitution. I view it differently.” J.A. 481.
On December 19, 2016, following a terrorist attack in Germany, President-Elect
Trump lamented the attack on people who were “prepared to celebrate the Christmas
holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in
their communities and places of worship as part of their global jihad.” J.A. 506. Two
days later, when asked whether recent violence in Europe had affected his plans to bar
Muslims from immigrating to the United States, President-Elect Trump commented,
“You know my plans. All along, I’ve been proven to be right. 100% correct. What’s
happening is disgraceful.” J.A. 506.
The President gave an interview to the Christian Broadcasting News on January
27, 2017, the same day he issued the First Executive Order. In that interview, the
President explained that EO-1 would give preference to Christian refugees: “They’ve
21
been horribly treated. Do you know if you were a Christian in Syria it was impossible, at
least very tough to get into the United States? If you were a Muslim you could come in,
but if you were a Christian, it was almost impossible . . . .” J.A. 461. He found that
situation “very, very unfair.” J.A. 461. Just before signing EO-1, President Trump
stated, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United
States.’ We all know what that means.” J.A. 403. The following day, former New York
City Mayor and presidential advisor Rudolph Giuliani appeared on Fox News and was
asked, “How did the President decide the seven countries?” J.A. 508. Giuliani answered,
“I’ll tell you the whole history of it. So when [the President] first announced it, he said
‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the
right way to do it legally.’” J.A. 508. Giuliani said he assembled a group of “expert
lawyers” that “focused on, instead of religion, danger—the areas of the world that create
danger for us. . . . It’s based on places where there [is] substantial evidence that people
are sending terrorists into our country.” J.A. 508–09.
In response to the Ninth Circuit’s decision not to stay enforcement of the
nationwide injunction, the President stated at a news conference on February 16, 2017,
that he intended to issue a new executive order tailored to that court’s decision—despite
his belief that the First Executive Order was lawful. See J.A. 334. In discussing the
Ninth Circuit’s decision and his “[e]xtreme vetting” proposal, the President stated, “I got
elected on defense of our country. I keep my campaign promises, and our citizens will be
very happy when they see the result.” J.A. 352. A few days later Stephen Miller, Senior
Policy Advisor to the President, explained that the new order would reflect “mostly minor
22
technical differences,” emphasizing that it would produce the “same basic policy
outcome for the country.” J.A. 339. White House Press Secretary Sean Spicer stated,
“The principles of the executive order remain the same.” J.A. 379. And President
Trump, in a speech at a rally in Nashville, Tennessee, described EO-2 as “a watered
down version of the first order.” Appellees’ Br. 7 (citing Katie Reilly, Read President
Trump’s Response to the Travel Ban Ruling: It ‘Makes Us Look Weak,’ Time (Mar. 16,
2017), http://time.com/4703622/president-trump-speech-transcript-travel-ban-ruling/
(saved as ECF opinion attachment)).
At the March 6, 2017 press conference announcing the Second Executive Order,
Secretary of State Rex Tillerson said, “This executive order is a vital measure for
strengthening our national security.” J.A. 376. That same day, Attorney General
Jefferson Sessions and Secretary of Homeland Security John Kelly submitted a letter to
the President detailing how weaknesses in our immigration system compromise our
nation’s security and recommending a temporary pause on entry of nationals from the
Designated Countries. Appellants’ Br. 8 n.3 (citing Letter from Jefferson B. Sessions III,
Attorney Gen., and John Francis Kelly, Sec’y of Homeland Sec., to President Donald J.
Trump (Mar. 6, 2017)). In a CNN interview the next day, Secretary Kelly specified that
there are probably “13 or 14 countries” that have “questionable vetting procedures,” not
all of which are Muslim countries or in the Middle East. J.A. 411. He noted that there
are “51 overwhelmingly Muslim countries” and rejected the characterization of EO-2 as a
“Muslim ban.” J.A. 412.
23
C.
This action was brought by six individuals, all American citizens or lawful
permanent residents who have at least one family member seeking entry into the United
States from one of the Designated Countries, and three organizations that serve or
represent Muslim clients or members.
Four of the individual Plaintiffs—John Doe #1, Jane Doe #2, John Doe #3, and
Paul Harrison—allege that EO-2 would impact their immediate family members’ ability
to obtain visas. J.A. 213–14, 245–52, 305, 308–09, 318–19. Collectively, they claim that
Section 2(c) of EO-2, the provision that suspends entry for certain foreign nationals for
ninety days, will prolong their separation from their loved ones. See, e.g., J.A. 306. John
Doe #1 has applied for a spousal immigration visa so that his wife, an Iranian national,
can join him in the United States; the application was approved, and she is currently
awaiting her visa interview. J.A. 305. Jane Doe #2, a college student in the United
States, has a pending I-130 visa application on behalf of her sister, a Syrian refugee living
in Saudi Arabia. J.A. 316, 318–19. Since the filing of the operative Complaint on March
10, 2017, two of Plaintiffs’ family members have obtained immigrant visas. The
Government informed the district court that Paul Harrison’s fiancé secured and collected
a visa on March 15, 2017, the day before EO-2 was to take effect. Appellants’ Br. 19 n.6
(citing J.A. 711–12, 715). Doe #3’s wife secured an immigrant visa on May 1, 2017, and
Plaintiffs anticipate that she will arrive in the United States within the next eight weeks.
J.A. 819. The remaining two individual Plaintiffs—Muhammed Meteab and Ibrahim
24
Ahmed Mohomed—allege that EO-2 would delay or deny the admission of their family
members as refugees. J.A. 214, 249–50, 252, 313–14, 321–22.
Beyond claiming injury to their family relationships, several of the individual
Plaintiffs allege that the anti-Muslim message animating EO-2 has caused them feelings
of disparagement and exclusion. Doe #1, a scientist who obtained permanent resident
status through the National Interest Waiver program for people with extraordinary
abilities, references these “anti-Muslim views,” worries about his safety in this country,
and contemplates whether he should return to Iran to be with his wife. J.A. 304, 306.
Plaintiff Meteab relays that the “anti-Muslim sentiment” motivating EO-2 had led him to
feel “isolated and disparaged in [his] community.” J.A. 314. He explains that when he is
in public with his wife, who wears a hijab, he “sense[s] a lot of hostility from people” and
recounts that his nieces, who both wear a hijab, “say that people make mean comments
and stare at them for being Muslim.” J.A. 314. A classmate “pulled the hijab off” one of
his nieces in class. J.A. 314.
Two of the organizational Plaintiffs, the International Refugee Assistance Project
and the Hebrew Immigrant Aid Society, primarily assist refugees with the resettlement
process. See J.A. 210–13, 235–43. These organizations claim that they have already
diverted significant resources to dealing with EO-2’s fallout, and that they will suffer
direct financial injury from the anticipated reduction in refugee cases. J.A. 238, 243,
276–77. They further claim that their clients, who are located in the United States and
the Middle East, will be injured by the delayed reunification with their loved ones. J.A.
268, 282–83. The final Plaintiff, the Middle East Studies Association, an umbrella
25
organization dedicated to fostering awareness of the Middle East, asserts that EO-2 will,
among other injuries, reduce attendance at its annual conference and cause the
organization to lose $18,000 in registration fees. J.A. 243–45, 300–03.
D.
Plaintiffs initiated this suit on February 7, 2017, seeking declaratory and injunctive
relief against enforcement of the First Executive Order. Plaintiffs claimed that EO-1
violated the Establishment Clause of the First Amendment; the equal protection
component of the Due Process Clause of the Fifth Amendment; the Immigration and
Nationality Act (“INA”), 8 U.S.C. §§ 1101–1537 (2012); the Religious Freedom
Restoration Act, 42 U.S.C. §§ 2000bb to 2000bb-4 (2012); the Refugee Act, 8 U.S.C.
§§ 1521–24 (2012); and the Administrative Procedure Act, 5 U.S.C. §§ 701–706 (2012).
They named as Defendants the President, DHS, the Department of State, the Office of the
Director of National Intelligence, the Secretary of Homeland Security, the Secretary of
State, and the Director of National Intelligence.
On March 10, 2017, four days after the President issued EO-2, Plaintiffs filed the
operative Complaint, along with a motion for a TRO and/or preliminary injunction.
Plaintiffs sought to enjoin implementation of EO-2 in its entirety, prior to its effective
date. In quick succession, the Government responded to the motion, Plaintiffs filed a
reply, and the parties appeared for a hearing.
The district court construed the motion as a request for a preliminary injunction,
and on March 16, 2017, it granted in part and denied in part that motion. Int’l Refugee
Assistance Project, 2017 WL 1018235, at *1. In its Memorandum Opinion, the district
26
court first found that three individual Plaintiffs (Doe #1, Doe #2, and Doe #3) had
standing to bring the claim that Section 2(c) violates the INA’s provision prohibiting
discrimination on the basis of nationality in the issuance of immigrant visas, 8 U.S.C.
§ 1152(a)(1)(A). Id. at *6. The court also determined that at least three individual
Plaintiffs (Meteab, Doe #1, and Doe #3) had standing to pursue the claim that EO-2
violates the Establishment Clause. Id. at *7.
After finding Plaintiffs’ claims justiciable, the district court turned to the merits of
their claims. The court determined that Plaintiffs are likely to succeed only in part on the
merits of their INA claim. Id. at *10. It found that Section 2(c) likely violates
§ 1152(a)(1)(A), but only as to its effective bar on the issuance of immigrant visas,
because § 1152(a)(1)(A) explicitly applies solely to immigrant visas. To the extent that
Section 2(c) prohibits the issuance of nonimmigrant visas and bars entry on the basis of
nationality, the court found that it was not likely to violate § 1152(a)(1)(A). Id. The
court did not discuss this claim in addressing the remaining preliminary injunction
factors.
The district court next found that Plaintiffs are likely to succeed on the merits of
their Establishment Clause claim. Id. at *16. It then considered the remaining
preliminary injunction requirements, but only as to the Establishment Clause claim: it
found that Plaintiffs would suffer irreparable injury if EO-2 were to take effect, that the
balance of the equities weighed in Plaintiffs’ favor, and that a preliminary injunction was
in the public interest. Id. at *17. The district court concluded that a preliminary
injunction was therefore proper as to Section 2(c) of EO-2 because Plaintiffs’ claims
27
centered primarily on that provision’s suspension of entry. The court accordingly issued
a nationwide injunction barring enforcement of Section 2(c). Id. at *18.
Defendants timely noted this appeal, and we possess jurisdiction pursuant to 28
U.S.C. § 1292(a)(1).
II.
Because the district court enjoined Section 2(c) in its entirety based solely on
Plaintiffs’ Establishment Clause claim, we need not reach the merits of Plaintiffs’
statutory claim under the INA.
In Section 2(c) of EO-2, the President suspended the entry of nationals from the
six Designated Countries, pursuant to his power to exclude aliens under Section 212(f) of
the INA, codified at 8 U.S.C. § 1182(f), and Section 215(a)(1) of the INA, codified at 8
U.S.C. § 1185(a)(1). The Government contends that Section 2(c)’s suspension of entry
falls squarely within the “expansive authority” granted to the President by § 1182(f) 6 and
6
Section 1182(f), entitled “Suspension of entry or imposition of restrictions by
President,” provides in pertinent part that
[w]henever the President finds that the entry of any aliens or of any
class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or
any class of aliens as immigrants or nonimmigrants, or impose on
the entry of aliens any restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f).
28
§ 1185(a)(1). 7 Appellants’ Br. 28. Plaintiffs, on the other hand, argue that Section 2(c)
violates a separate provision of the INA, Section 202(a)(1)(A), codified at 8 U.S.C.
§ 1152(a)(1)(A), prohibiting discrimination on the basis of nationality “in the issuance of
immigrant visas.” 8
The district court determined that Plaintiffs are likely to succeed on their claim
under § 1152(a)(1)(A) only in limited part. Because Section 2(c) has the practical effect
of halting the issuance of immigrant visas on the basis of nationality, the court reasoned,
it is inconsistent with § 1152(a)(1)(A). To that extent—and contrary to the Government’s
position—the court found that Presidential authority under § 1182(f) and § 1185(a)(1) is
cabined by the INA’s prohibition on nationality-based discrimination in visa issuance.
But the district court’s ruling was limited in two important respects. First, because
§ 1152(a)(1)(A) applies only to the issuance of immigrant visas, the district court
discerned no conflict between that provision and the application of Section 2(c) to
persons seeking non-immigrant visas. And second, the district court found that because
§ 1152(a)(1)(A) governs the issuance of visas rather than actual entry into the United
7
Section 1185(a)(1) provides that “[u]nless otherwise ordered by the President, it
shall be unlawful [] for any alien to depart from or enter or attempt to depart from or
enter the United States except under such reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as the President may prescribe . . . .” 8 U.S.C.
§ 1185(a)(1).
8
Section 1152(a)(1)(A) provides, with certain exceptions not relevant here, that
“no person shall receive any preference or priority or be discriminated against in the
issuance of an immigrant visa because of the person’s race, sex, nationality, place of
birth, or place of residence.” 8 U.S.C. § 1152(a)(1)(A).
29
States, it poses no obstacle to enforcement of Section 2(c)’s nationality-based entry bar.
The district court summarized as follows:
Plaintiffs have shown a likelihood of success on the merits of their
claim that the Second Executive Order violates § 1152(a), but only
as to the issuance of immigrant visas . . . . They have not shown a
likelihood of success on the merits of the claim that § 1152(a)
prevents the President from barring entry to the United States
pursuant to § 1182(f), or the issuance of non-immigrant visas, on the
basis of nationality.
Int’l Refugee Assistance Project, 2017 WL 1018235, at *10.
This narrow statutory ruling is not the basis for the district court’s broad
preliminary injunction enjoining Section 2(c) of EO-2 in all of its applications. Rather,
Plaintiffs’ constitutional claim, the district court determined, was what justified a
nationwide preliminary injunction against any enforcement of Section 2(c). If we were to
disagree with the district court that § 1152(a)(1)(A) partially restrains the President’s
authority under § 1182(f) and § 1185(a)(1), then we would be obliged to consider
Plaintiffs’ alternative Establishment Clause claim. And, importantly, even if we were to
agree with the district court’s statutory analysis, we still would be faced with the question
of whether the scope of the preliminary injunction, which goes beyond the issuance of
immigrant visas governed by § 1152(a)(1)(A) to enjoin Section 2(c) in its entirety, can be
sustained on the basis of Plaintiffs’ Establishment Clause claim.
In light of this posture, we need not address the merits of the district court’s
statutory ruling. We recognize, of course, the doctrine of constitutional avoidance, which
counsels against the issuance of “unnecessary constitutional rulings.” Am. Foreign Serv.
Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989) (per curiam). But as we have explained, the
30
district court’s constitutional ruling was necessary to its decision, and review of that
ruling is necessary to ours. Accordingly, we decline to reach the merits of Plaintiffs’
claim under § 1152(a)(1)(A). The breadth of the preliminary injunction issued by the
district court may be justified if and only if Plaintiffs can satisfy the requirements for a
preliminary injunction based on their Establishment Clause claim. We therefore turn to
consider that claim.
III.
The Government first asks us to reverse the preliminary injunction on the grounds
that Plaintiffs’ Establishment Clause claim is non-justiciable. In its view, Plaintiffs have
not satisfied the foundational Article III requirements of standing and ripeness, and in any
event, the doctrine of consular nonreviewability bars judicial review of their claim. We
consider these threshold challenges in turn.
A.
The district court found that at least three individual Plaintiffs—Muhammed
Meteab, Doe #1, and Doe #3—have standing to assert the claim that EO-2 violates the
Establishment Clause. We review this legal determination de novo. Peterson v. Nat’l
Telecomms. & Info. Admin., 478 F.3d 626, 631 n.2 (4th Cir. 2007).
The Constitution’s gatekeeping requirement that federal courts may only
adjudicate “Cases” or “Controversies,” U.S. Const. art. III, § 2, obligates courts to
determine whether litigants have standing to bring suit, Clapper v. Amnesty Int’l USA,
133 S. Ct. 1138, 1146 (2013). To demonstrate standing and thus invoke federal
31
jurisdiction, a party must establish that “(1) it has suffered an injury in fact, (2) the injury
is fairly traceable to the defendants’ actions, and (3) it is likely, and not merely
speculative, that the injury will be redressed by a favorable decision.” Long Term Care
Partners, LLC v. United States, 516 F.3d 225, 231 (4th Cir. 2008) (citing Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560–61 (1992)). The parties’ core dispute is whether Plaintiffs
have suffered a cognizable injury. To establish a cognizable injury, “a plaintiff must
show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete
and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” Spokeo,
Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan, 504 U.S. at 560); see also
Beck v. McDonald, 848 F.3d 262, 270–71 (4th Cir. 2017).
In evaluating standing, “the court must be careful not to decide the question on the
merits for or against the plaintiff, and must therefore assume that on the merits the
plaintiffs would be successful in their claims.” Cooksey v. Futrell, 721 F.3d 226, 239
(4th Cir. 2013) (quoting City of Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003));
see also Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007), aff’d by
District of Columbia v. Heller, 554 U.S. 570 (2008) (“The Supreme Court has made clear
that when considering whether a plaintiff has Article III standing, a federal court must
assume arguendo the merits of his or her legal claim.”). This means, for purposes of
standing, we must assume that Section 2(c) violates the First Amendment’s prohibition
against governmental “establishment of religion.”
“Standing in Establishment Clause cases may be shown in various ways,” Ariz.
Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 129 (2011), though as oft-repeated,
32
“the concept of injury for standing purposes is particularly elusive” in this context, Suhre
v. Haywood County, 131 F.3d 1083, 1085 (4th Cir. 1997) (quoting Murray v. City of
Austin, 947 F.2d 147, 151 (5th Cir. 1991)). Nevertheless, the Supreme Court and this
Circuit have developed a set of rules that guide our review.
To establish standing for an Establishment Clause claim, a plaintiff must have
“personal contact with the alleged establishment of religion.” Id. at 1086 (emphasis
added). A “mere abstract objection to unconstitutional conduct is not sufficient to confer
standing.” Id. The Supreme Court has reinforced this principle in recent years:
“plaintiffs may demonstrate standing based on the direct harm of what is claimed to be an
establishment of religion.” Winn, 563 U.S. at 129. This “direct harm” can resemble
injuries in other contexts. Merchants who suffered economic injury, for instance, had
standing to challenge Sunday closing laws as violative of the Establishment Clause.
McGowan v. Maryland, 366 U.S. 420, 430–31 (1961); Czyzewski v. Jevic Holding Corp.,
137 S. Ct. 973, 983 (2017) (noting that, in McGowan, appellants who were “fined $5 plus
costs had standing”). But because Establishment Clause violations seldom lead to
“physical injury or pecuniary loss,” the standing inquiry has been adapted to also include
“the kind of injuries Establishment Clause plaintiffs” are more “likely to suffer.” Suhre,
131 F.3d at 1086. As such, “noneconomic or intangible injury may suffice to make an
Establishment Clause claim justiciable.” Id. “Feelings of marginalization and exclusion
are cognizable forms of injury,” we recently explained, “particularly in the Establishment
Clause context, because one of the core objectives of modern Establishment Clause
jurisprudence has been to prevent the State from sending a message to non-adherents of a
33
particular religion ‘that they are outsiders, not full members of the political community.’”
Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607 (4th Cir. 2012) (quoting
McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005)).
Doe #1—who is a lawful permanent resident of the United States, Muslim, and
originally from Iran—filed a visa application on behalf of his wife, an Iranian national.
Her application has been approved, and she is currently awaiting her consular interview.
J.A. 305. If it took effect, EO-2 would bar the entry of Doe #1’s wife. Doe #1 explains
that because EO-2 bars his wife’s entry, it “forces [him] to choose between [his] career
and being with [his] wife,” and he is unsure “whether to keep working here” as a scientist
or to return to Iran. J.A. 306. Doe #1 adds that EO-2 has “created significant fear,
anxiety, and insecurity” for him and his wife. He highlights the “statements that have
been made about banning Muslims from entering, and the broader context,” and states, “I
worry that I may not be safe in this country.” J.A. 306; see also J.A. 314 (Plaintiff
Meteab describing how the “anti-Muslim sentiment motivating” EO-2 has led him to feel
“isolated and disparaged in [his] community”).
Doe #1 has therefore asserted two distinct injuries stemming from his “personal
contact” with the alleged establishment of religion—EO-2. Suhre, 131 F.3d at 1086.
First, EO-2 will bar his wife’s entry into the United States and prolong their separation.
And second, EO-2 sends a state-sanctioned message condemning his religion and causing
him to feel excluded and marginalized in his community.
We begin with Doe #1’s allegation that EO-2 will prolong his separation from his
wife. This Court has found that standing can be premised on a “threatened rather than
34
actual injury,” Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d
149, 160 (4th Cir. 2000) (en banc), as long as this “threat of injury [is] both real and
immediate,” Beck, 848 F.3d at 277 (quoting Lebron v. Rumsfeld, 670 F.3d 540, 560 (4th
Cir. 2012)). The purpose of the longstanding “imminence” requirement, which is
admittedly “a somewhat elastic concept,” is “to ensure that the alleged injury is not too
speculative for Article III purposes—that the injury is ‘certainly impending.’” Lujan,
504 U.S. at 564 n.2 (quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
The Government does not contest that, in some circumstances, the prolonged
separation of family members can constitute an injury-in-fact. The Government instead
argues that Doe #1’s claimed injury is speculative and non-imminent, Appellants’ Br. 19,
such that it is not “legally and judicially cognizable.” Id. at 18 (quoting Raines v. Byrd,
521 U.S. 811, 819 (1997)). According to the Government, Doe #1 has failed to show that
his threatened injury—prolonged separation from his wife—is imminent. It asserts that
Doe #1 has offered no reason to believe that Section 2(c)’s “short pause” on entry “will
delay the issuance of [his wife’s] visa.” Appellants’ Br. 19.
But this ignores that Section 2(c) appears to operate by design to delay the
issuance of visas to foreign nationals. Section 2(c)’s “short pause” on entry effectively
halts the issuance of visas for ninety days—as the Government acknowledges, it “would
be pointless to issue a visa to an alien who the consular officer already knows is barred
from entering the country.” Appellants’ Br. 32; see also Brief for Cato Institute as
Amicus Curiae Supporting Appellees 25–28, ECF No. 185 (arguing that Section 2(c)
operates as a ban on visa issuance). The Government also cites 8 U.S.C. § 1201(g),
35
which provides in relevant part that “[n]o visa or other documentation shall be issued to
an alien if [] it appears to the consular officer . . . that such alien is ineligible to receive a
visa or other documentation under section 1182 of this title.” See also U.S. Dep’t of
State, 9 Foreign Affairs Manual 302.14–3(B) (2016). A ninety-day pause on issuing
visas would seem to necessarily inject at least some delay into any pending application’s
timeline. And in fact, the Government suggests that pending visa applications might not
be delayed, but denied. See Appellants’ Br. 33 (explaining that “when an alien subject to
the Order is denied an immigrant visa, . . . he is being denied a visa because he has been
validly barred from entering the country”). A denial on such grounds would mean that
once the entry suspension period concludes, an alien would have to restart from the
beginning the lengthy visa application process. What is more, Section 2(c) is designed to
“reduce investigative burdens on relevant agencies” to facilitate worldwide review of the
current procedures for “screening and vetting of foreign nationals.” Logically, dedicating
time and resources to a global review process will further slow the adjudication of
pending applications.
Here, Doe #1 has a pending visa application on behalf of his wife, seeking her
admission to the United States from one of the Designated Countries. Prior to EO-2’s
issuance, Doe #1 and his wife were nearing the end of the lengthy immigrant visa
process, as they were waiting for her consular interview to be scheduled. J.A. 305. They
had already submitted a petition, received approval of that petition, begun National Visa
Center (“NVC”) Processing, submitted the visa application form, collected and submitted
the requisite financial and supporting documentation to NVC, and paid the appropriate
36
fees. J.A. 305; see U.S. Dep’t of State, The Immigrant Visa Process,
https://travel.state.gov/content/visas/en/immigrate/immigrant-process.html (last visited
May 14, 2017) (saved as ECF opinion attachment) (diagramming steps of the immigrant-
visa application process). If Section 2(c) were in force—restricting the issuance of visas
to nationals in the Designated Countries for ninety days and initiating the worldwide
review of existing visa standards—we find a “real and immediate” threat that it would
prolong Doe #1’s separation from his wife, either by delaying the issuance of her visa or
denying her visa and forcing her to restart the application process. Beck, 848 F.3d at 277
(quoting Lebron, 670 F.3d at 560).
This prolonged family separation is not, as the Government asserts, a remote or
speculative possibility. Unlike threatened injuries that rest on hypothetical actions a
plaintiff may take “some day,” Lujan, 504 U.S. at 564, or on a “highly attenuated chain
of possibilities,” Clapper, 133 S. Ct. at 1148, the threatened injury here is imminent,
sufficiently “real” and concrete, Spokeo, 136 S. Ct. at 1549, and would harm Doe #1 in a
personal and “particularized” way, id. at 1548. The progression of Doe #3’s wife’s visa
application illustrates this. Doe #3’s wife received a visa on May 1, 2017, while Section
2(c) was enjoined. If Section 2(c) had been in effect, she would have been ineligible to
receive a visa until after the expiration of the ninety-day period. See 8 U.S.C. § 1201(g).
Put simply, Section 2(c) would have delayed the issuance of Doe #3’s wife’s visa. This
cuts directly against the Government’s assertion that it is uncertain whether or how
Section 2(c) would affect visa applicants. Clearly Section 2(c) will delay and disrupt
pending visa applications.
37
Even more, flowing from EO-2 is the alleged state-sanctioned message that
foreign-born Muslims, a group to which Doe #1 belongs, are “outsiders, not full members
of the political community.” Moss, 683 F.3d at 607 (quoting McCreary, 545 U.S. at
860). 9 Doe #1 explains how the Second Executive Order has caused him to fear for his
personal safety in this country and wonder whether he should give up his career in the
United States and return to Iran to be with his wife. J.A. 306. This harm is consistent
with the “[f]eelings of marginalization and exclusion” injury we recognized in Moss. 683
F.3d at 607.
In light of these two injuries, we find that Doe #1 has had “personal contact with
the alleged establishment of religion.” Suhre, 131 F.3d at 1086. Regardless of whether
EO-2 actually violates the Establishment Clause’s command not to disfavor a particular
religion, a merits inquiry explored in Section IV.A, his injuries are on par with, if not
greater than, injuries we previously deemed sufficient in this context. See Moss, 683 F.3d
at 607 (finding Jewish daughter and father who received letter describing public school
policy of awarding academic credit for private, Christian religious instruction suffered
9
The Government would have us, in assessing standing, delve into whether EO-2
sends a sufficiently religious message such that it violates the Establishment Clause. But
this “put[s] the merits cart before the standing horse.” Cooksey, 721 F.3d at 239 (quoting
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1093 (10th Cir. 2006)). The
question of whether EO-2 “conveys a message of endorsement or disapproval [of
religion]” is a merits determination. Mellen v. Bunting, 327 F.3d 355, 374 (4th Cir. 2003)
(quoting Wallace v. Jaffree, 472 U.S. 38, 56 n.42 (1985)). And both parties address it as
a merits question in their briefs. Appellants’ Br. 48 (“The Order, in contrast, conveys no
religious message . . . .”); id. at 52 (“Here, the Order does not convey a religious message
. . . .”); Appellees’ Br. 38 (“The Order’s purpose to exclude Muslims conveys the exact
same message . . . .”). Because we assume the merits of Plaintiffs’ claim in assessing
standing, we need not reach the Government’s argument on this point.
38
injury in part because they were made to feel like “‘outsiders’ in their own
community”). 10
The Government attempts to undercut these injuries in several ways. It first
frames Plaintiffs’ injuries as “stress.” Appellants’ Br. 23. That minimizes the
psychological harm that flows from confronting official action preferring or disfavoring a
particular religion and, in any event, does not account for the impact on families. The
Government next argues that because the Second Executive Order “directly applies only
to aliens abroad from the specified countries,” it is “not directly targeted at plaintiffs,”
who are based in the United States, “in the way that local- or state-government messages
are.” Appellants’ Reply Br. 3. An executive order is of course different than a local
Sunday closing law or a Ten Commandments display in a state courthouse, but that does
not mean its impact is any less direct. Indeed, because it emanates from the highest
elected office in the nation, its impact is arguably felt even more directly by the
individuals it affects. From Doe #1’s perspective, the Second Executive Order does not
apply to arbitrary or anonymous “aliens abroad.” It applies to his wife.
More than abstractly disagreeing with the wisdom or legality of the President’s
policy decision, Plaintiffs show how EO-2 impacted (and continues to impact) them
10
Plaintiffs’ injuries are also consistent with the injuries that other courts have
recognized in Establishment Clause cases that do not involve religious displays or prayer.
See Awad v. Ziriax, 670 F.3d 1111, 1122 (10th Cir. 2012) (recognizing injury stemming
from amendment that “condemn[ed] [plaintiff’s] religious faith and expose[d] him to
disfavored treatment”); Catholic League for Religious & Civil Rights v. City & County of
San Francisco, 624 F.3d 1043, 1052 (9th Cir. 2010) (en banc) (finding “exclusion or
denigration on a religious basis within the political community” to be sufficiently
concrete injury).
39
personally. Doe #1 is not simply “roam[ing] the country in search of governmental
wrongdoing.” Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 487 (1982). Rather, he is feeling the direct, painful effects of
the Second Executive Order—both its alleged message of religious condemnation and the
prolonged separation it causes between him and his wife—in his everyday life. 11 This
case thus bears little resemblance to Valley Forge.
We likewise reject the Government’s suggestion that Plaintiffs are seeking to
vindicate the legal rights of third parties. The prudential standing doctrine includes a
“general prohibition on a litigant’s raising another person’s legal rights.” CGM, LLC v.
BellSouth Telecomms., Inc., 664 F.3d 46, 52 (4th Cir. 2011) (quoting Allen v. Wright, 468
11
For similar reasons, this case is not, as the Government claims, comparable to In
re Navy Chaplaincy, 534 F.3d 756 (D.C. Cir. 2008). In that case, the court found that
non-liturgical Protestant chaplains who were part of the Navy’s Chaplain Corps lacked
standing to bring a claim that the Navy preferred Catholic chaplains in violation of the
Establishment Clause. Id. at 765. The court stated its holding as follows: “When
plaintiffs are not themselves affected by a government action except through their
abstract offense at the message allegedly conveyed by that action, they have not shown
an injury-in-fact to bring an Establishment Clause claim.” Id. at 764–65. The court
repeatedly emphasized that plaintiffs were not themselves affected by the challenged
action. See id. at 758 (“[T]he plaintiffs do not claim that the Navy actually discriminated
against any of them.”); id. at 760 (“But plaintiffs have conceded that they themselves did
not suffer employment discrimination . . . . Rather, they suggest that other chaplains
suffered discrimination.”). In fact, plaintiffs’ theory of standing was so expansive that
their counsel conceded at oral argument that even the “judges on th[e] panel” would have
standing to challenge the allegedly discriminatory conduct. Id. at 764. Here, by contrast,
Doe #1 is directly affected by the government action—both its message and its impact on
his family. Thus, contrary to the Government’s assertion, Appellants’ Br. 24, all
Muslims in the United States do not have standing to bring this suit. Only those persons
who suffer direct, cognizable injuries as a result of EO-2 have standing to challenge it.
40
U.S. 737, 751 (1984)). This “general prohibition” is not implicated here, however, as
Doe #1 has shown that he himself suffered injuries as a result of the challenged Order. 12
For all of these reasons, we find that Doe #1 has met his burden to establish an
Article III injury. We further find that Doe #1 has made the requisite showing that his
claimed injuries are causally related to the challenged conduct—the Second Executive
Order—as opposed to “the independent action of some third party not before the court.”
Cooksey, 721 F.3d at 238 (quoting Frank Krasner Enters., Ltd. v. Montgomery County,
401 F.3d 230, 234 (4th Cir. 2005)). Enjoining enforcement of Section 2(c) therefore will
likely redress those injuries. Doe #1 has thus met the constitutional standing
requirements with respect to the Establishment Clause claim. And because we find that
at least one Plaintiff possesses standing, we need not decide whether the other individual
Plaintiffs or the organizational Plaintiffs have standing with respect to this claim. See
Bostic v. Schaefer, 760 F.3d 352, 370 (4th Cir. 2014).
12
The district court here correctly recognized that the Supreme Court has on
multiple occasions “reviewed the merits of cases brought by U.S. residents with a
specific interest in the entry of a foreigner.” Int’l Refugee Assistance Project, 2017 WL
1018235, at *5 (citing Kerry v. Din, 135 S. Ct. 2128, 2131, 2138–42 (2015) (reaching
merits where American citizen challenged denial of husband’s visa application);
Kleindienst v. Mandel, 408 U.S. 753, 756, 762–65 (1972) (reaching merits where
American scholars challenged denial of temporary nonimmigrant visa to Marxist Belgian
journalist)); see also Mandel, 408 U.S. at 772 (“Even assuming, arguendo, that those on
the outside seeking admission have no standing to complain, those who hope to benefit
from the traveler’s lectures do.” (Douglas, J., dissenting)). The Supreme Court’s
consideration of the merits in these cases suggests, at least at a general level, that
Americans have a cognizable interest in the application of immigration laws to their
foreign relatives.
41
Lastly, the Government asserts that Plaintiffs’ Establishment Clause claim is
unripe. It argues that under EO-2, Plaintiffs’ relatives can apply for a waiver, and unless
and until those waiver requests are denied, Plaintiffs’ claims are dependent on future
uncertainties. When evaluating ripeness, we consider “(1) the fitness of the issues for
judicial decision and (2) the hardship to the parties of withholding court consideration.”
Id. (quoting Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808 (2003)). An
action is fit for resolution “when the issues are purely legal and when the action in
controversy is final and not dependent on future uncertainties.” Miller v. Brown, 462
F.3d 312, 319 (4th Cir. 2006). The “hardship prong is measured by the immediacy of the
threat and the burden imposed on the [plaintiff].” Lansdowne on the Potomac
Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, 713 F.3d 187, 199 (4th Cir.
2013) (quoting Charter Fed. Sav. Bank v. Office of Thrift Supervision, 976 F.2d 203,
208–09 (4th Cir. 1992)).
Our ripeness doctrine is clearly not implicated here. Plaintiffs have brought a
facial challenge, alleging that EO-2 violates the Establishment Clause regardless of
whether their relatives secure waivers. This legal question is squarely presented for our
review and is not dependent on the factual uncertainties of the waiver process. What is
more, Plaintiffs will suffer undue hardship, as explained above, were we to require their
family members to attempt to secure a waiver before permitting Plaintiffs to challenge
Section 2(c). We accordingly find the claim ripe for judicial decision.
42
B.
In one final justiciability challenge, the Government asserts that consular
nonreviewability bars any review of Plaintiffs’ claim. This Court has scarcely discussed
the doctrine, so the Government turns to the District of Columbia Circuit, which has
stated that “a consular official’s decision to issue or withhold a visa is not subject to
judicial review, at least unless Congress says otherwise.” Saavedra Bruno v. Albright,
197 F.3d 1153, 1159 (D.C. Cir. 1999). But in the same opinion, the court explained that
judicial review was proper in cases involving “claims by United States citizens rather
than by aliens . . . and statutory claims that are accompanied by constitutional ones.” Id.
at 1163 (quoting Abourezk v. Reagan, 785 F.2d 1043, 1051 n.6 (D.C. Cir. 1986)). This is
precisely such a case. More fundamentally, the doctrine of consular nonreviewability
does not bar judicial review of constitutional claims. See, e.g., Din, 135 S. Ct. at 2132(reviewing visa denial where plaintiff asserted due process claim). The Government’s
reliance on the doctrine is therefore misplaced.
Behind the casual assertion of consular nonreviewability lies a dangerous idea—
that this Court lacks the authority to review high-level government policy of the sort here.
Although the Supreme Court has certainly encouraged deference in our review of
immigration matters that implicate national security interests, see infra Section IV.A, it
has not countenanced judicial abdication, especially where constitutional rights, values,
and principles are at stake. To the contrary, the Supreme Court has affirmed time and
again that “it is emphatically the province and duty of the judicial department to say what
the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). This “duty will sometimes
43
involve the ‘resolution of litigation challenging the constitutional authority of one of the
three branches,’ but courts cannot avoid their responsibility.” Zivotofsky ex rel.
Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919,
943 (1983)). In light of this duty, and having determined that the present case is
justiciable, we now proceed to consider whether the district court properly enjoined
Section 2(c) of the Second Executive Order.
IV.
A preliminary injunction is an “extraordinary remed[y] involving the exercise of
very far-reaching power” and is “to be granted only sparingly and in limited
circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001)
(quoting Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 816 (4th Cir.
1991)). For a district court to grant a preliminary injunction, “a plaintiff ‘must establish
[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable
harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor,
and [4] that an injunction is in the public interest.’” WV Ass’n of Club Owners &
Fraternal Servs., Inc. v. Musgrave, 553 F.3d 292, 298 (4th Cir. 2009) (quoting Winter v.
Nat. Res. Defense Council, Inc., 555 U.S. 7, 20 (2008)). The district court found that
Plaintiffs satisfied all four requirements as to their Establishment Clause claim, and it
enjoined Section 2(c) of EO-2. We evaluate the court’s findings for abuse of discretion,
Aggarao v. MOL Ship Mgmt. Co., Ltd., 675 F.3d 355, 366 (4th Cir. 2012), reviewing its
44
factual findings for clear error and its legal conclusions de novo, Dewhurst v. Century
Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011).
A.
The district court determined that Plaintiffs are likely to succeed on the merits of
their claim that EO-2 violates the Establishment Clause. Int’l Refugee Assistance
Project, 2017 WL 1018235, at *16. It found that because EO-2 is “facially neutral in
terms of religion,” id. at *13, the test outlined in Lemon v. Kurtzman, 403 U.S. 602(1971), governs the constitutional inquiry. And applying the Lemon test, the court found
that EO-2 likely violates the Establishment Clause. The Government argues that the
court erroneously applied the Lemon test instead of the more deferential test set forth in
Kleindienst v. Mandel, 408 U.S. 753 (1972). And under Mandel, the Government
contends, Plaintiffs’ claim fails.
1.
We begin by addressing the Government’s argument that the district court applied
the wrong test in evaluating Plaintiffs’ constitutional claim. The Government contends
that Mandel sets forth the appropriate test because it recognizes the limited scope of
judicial review of executive action in the immigration context. Appellants’ Br. 42. We
agree that Mandel is the starting point for our analysis, but for the reasons that follow, we
find that its test contemplates the application of settled Establishment Clause doctrine in
this case.
In Mandel, American university professors had invited Mandel, a Belgian citizen
and revolutionary Marxist and professional journalist, to speak at a number of
45
conferences in the United States. 408 U.S. at 756. But Mandel’s application for a
nonimmigrant visa was denied under a then-existing INA provision that barred the entry
of aliens “who advocate the economic, international, and governmental doctrines of
world communism.” 8 U.S.C. § 1182(a)(28)(D) (1964). The Attorney General had
discretion to waive § 1182(a)(28)(D)’s bar and grant Mandel an individual exception, but
declined to do so on the grounds that Mandel had violated the terms of his visas during
prior visits to the United States. 408 U.S. at 759. The American professors sued,
alleging, among other things, that the denial of Mandel’s visa violated their First
Amendment rights to “hear his views and engage him in a free and open academic
exchange.” Id. at 760.
The Supreme Court, citing “Congress’ ‘plenary power to make rules for the
admission of aliens and to exclude those who possess those characteristics which
Congress has forbidden,’” id. at 766 (quoting Boutilier v. INS, 387 U.S. 118, 123 (1967)),
found that the longstanding principle of deference to the political branches in the
immigration context limited its review of plaintiffs’ challenge, id. at 767. The Court held
that “when the Executive exercises this power [to exclude an alien] on the basis of a
facially legitimate and bona fide reason, the courts will neither look behind the exercise
of that discretion, nor test it by balancing its justification against the [plaintiffs’] First
Amendment interests.” Id. at 770. The Court concluded that the Attorney General’s
46
stated reason for denying Mandel’s visa—that he had violated the terms of prior visas—
satisfied this test. 13 It therefore did not review plaintiffs’ First Amendment claim.
Courts have continuously applied Mandel’s “facially legitimate and bona fide” test
to challenges to individual visa denials. See Din, 135 S. Ct. at 2139–40 (Kennedy, J.,
concurring in the judgment) (applying Mandel’s test to challenge to visa denial);
Cardenas v. United States, 826 F.3d 1164, 1172–73 (9th Cir. 2016) (same); Am. Acad. of
Religion v. Napolitano, 573 F.3d 115, 125 (2d Cir. 2009) (same). Subsequently, in Fiallo
v. Bell, 430 U.S. 787 (1977), the Supreme Court applied Mandel’s test to a facial
challenge to an immigration law, finding “no reason to review the broad congressional
policy choice at issue here under a more exacting standard than was applied in
Kleindienst v. Mandel, a First Amendment case.” Id. at 795. And in a case where
plaintiffs brought a constitutional challenge to an immigration law, this Court has found
that “we must apply the same standard as the Fiallo court and uphold the statute if a
‘facially legitimate and bona fide reason’ supports [it].” Johnson, 647 F.3d at 127. 14
Mandel is therefore the starting point for our review.
13
The Court specifically declined to decide “what First Amendment or other
grounds may be available for attacking exercise of discretion for which no justification
whatsoever is advanced.” Id.
14
In Johnson, this Court considered an equal protection challenge to an
immigration law. Id. at 126–27. Relying on several of our sister circuits, we equated
Mandel’s “facially legitimate and bona fide” test with rational basis review. Id. at 127
(citing Barthelemy v. Ashcroft, 329 F.3d 1062, 1065–66 (9th Cir. 2003), as amended
(June 9, 2003); Wedderburn v. INS, 215 F.3d 795, 800 (7th Cir. 2000)). But the Johnson
Court’s interpretation is incomplete. Rational basis review does build in deference to the
government’s reasons for acting, like Mandel’s “facially legitimate” requirement, but it
(Continued)
47
But in another more recent line of cases, the Supreme Court has made clear that
despite the political branches’ plenary power over immigration, that power is still
“subject to important constitutional limitations,” Zadvydas v. Davis, 533 U.S. 678, 695
(2001), and that it is the judiciary’s responsibility to uphold those limitations. Chadha,
462 U.S. at 941 (stating that Congress and the Executive must “cho[ose] a
constitutionally permissible means of implementing” their authority over immigration).
These cases instruct that the political branches’ power over immigration is not
tantamount to a constitutional blank check, and that vigorous judicial review is required
when an immigration action’s constitutionality is in question.
We are bound to give effect to both lines of cases, meaning that we must enforce
constitutional limitations on immigration actions while also applying Mandel’s
deferential test to those actions as the Supreme Court has instructed. For the reasons that
follow, however, we find that these tasks are not mutually exclusive, and that Mandel’s
does not call for an inquiry into an actor’s “bad faith” and therefore does not properly
account for Mandel’s “bona fide” requirement. Even more, Johnson and similar cases
applying rational basis review did so in the context of equal protection challenges. See,
e.g., Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008); Breyer v. Meissner, 214 F.3d
416, 422 n.6 (3d Cir. 2000). But courts do not apply rational basis review to
Establishment Clause challenges, because that would mean dispensing with the purpose
inquiry that is so central to Establishment Clause review. See Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993) (“In our Establishment
Clause cases we have often stated the principle that the First Amendment forbids an
official purpose to disapprove of a particular religion or of religion in general.”); see also
Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1255 n.2 (10th Cir. 2008)
(suggesting that rational basis review cannot be used to evaluate an Establishment Clause
claim) (citing Heller, 554 U.S. 570). We therefore decline to apply Johnson’s
interpretation of Mandel’s “facially legitimate and bona fide” test to this case.
48
test still contemplates meaningful judicial review of constitutional challenges in certain,
narrow circumstances, as we have here.
To begin, Mandel’s test undoubtedly imposes a heavy burden on plaintiffs,
consistent with the significant deference we afford the political branches in the
immigration context. See Mathews v. Diaz, 426 U.S. 67, 82 (1976) (describing the
“narrow standard of [judicial] review of decisions made by the Congress or the President
in the area of immigration and naturalization”). The government need only show that the
challenged action is “facially legitimate and bona fide” to defeat a constitutional
challenge. Mandel, 408 U.S. at 770. These are separate and quite distinct requirements.
To be “facially legitimate,” there must be a valid reason for the challenged action stated
on the face of the action. Din, 135 S. Ct. at 2140–41 (Kennedy, J., concurring in the
judgment) (finding visa denial “facially legitimate” where government cited a statutory
provision in support of the denial).
And as the name suggests, the “bona fide” requirement concerns whether the
government issued the challenged action in good faith. In Kerry v. Din, Justice Kennedy,
joined by Justice Alito, elaborated on this requirement. Id. at 2141. 15 Here, the burden is
15
The Ninth Circuit has found that Justice Kennedy’s concurrence is the
controlling opinion in Din. It relied on the Supreme Court’s holding in Marks v. United
States, which stated that “[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices, the holding of the Court
may be viewed as that position taken by those Members who concurred in the judgments
on the narrowest grounds.” Cardenas, 826 F.3d at 1171 (quoting Marks v. United States,
430 U.S. 188, 193 (1977)). We agree that Justice Kennedy’s opinion sets forth the
narrowest grounds for the Court’s holding in Din and likewise recognize it as the
controlling opinion.
49
on the plaintiff. Justice Kennedy explained that where a plaintiff makes “an affirmative
showing of bad faith” that is “plausibly alleged with sufficient particularity,” courts may
“look behind” the challenged action to assess its “facially legitimate” justification. Id.(suggesting that if plaintiff had sufficiently alleged that government denied visa in bad
faith, court should inquire whether the government’s stated statutory basis for denying
the visa was the actual reason for the denial). In the typical case, it will be difficult for a
plaintiff to make an affirmative showing of bad faith with plausibility and particularity.
See, e.g., Cardenas, 826 F.3d at 1173 (applying Din and finding that plaintiff who alleged
that consular officer refused to consider relevant evidence and acted based on racial bias
had failed to make an affirmative showing of bad faith). And absent this affirmative
showing, courts must defer to the government’s “facially legitimate” reason for the
action.
Mandel therefore clearly sets a high bar for plaintiffs seeking judicial review of a
constitutional challenge to an immigration action. But although Mandel’s “facially
legitimate and bona fide” test affords significant deference to the political branches’
decisions in this area, it does not completely insulate those decisions from any
meaningful review. Where plaintiffs have seriously called into question whether the
stated reason for the challenged action was provided in good faith, we understand
Mandel, as construed by Justice Kennedy in his controlling concurrence in Din, to require
that we step away from our deferential posture and look behind the stated reason for the
challenged action. In other words, Mandel’s requirement that an immigration action be
“bona fide” may in some instances compel more searching judicial review. Plaintiffs ask
50
this Court to engage in such searching review here under the traditional Establishment
Clause test, and we therefore turn to consider whether such a test is warranted.
We start with Mandel’s requirement that the challenged government action be
“facially legitimate.” EO-2’s stated purpose is “to protect the Nation from terrorist
activities by foreign nationals admitted to the United States.” EO-2, Preamble. We find
that this stated national security interest is, on its face, a valid reason for Section 2(c)’s
suspension of entry. EO-2 therefore satisfies Mandel’s first requirement. Absent
allegations of bad faith, our analysis would end here in favor of the Government. But in
this case, Plaintiffs have alleged that EO-2’s stated purpose was given in bad faith. We
therefore must consider whether they have made the requisite showing of bad faith.
As noted, Plaintiffs must “plausibly allege[] with sufficient particularity” that the
reason for the government action was provided in bad faith. Din, 135 S. Ct. at 2141(Kennedy, J., concurring in the judgment). Plaintiffs here claim that EO-2 invokes
national security in bad faith, as a pretext for what really is an anti-Muslim religious
purpose. Plaintiffs point to ample evidence that national security is not the true reason
for EO-2, including, among other things, then-candidate Trump’s numerous campaign
statements expressing animus towards the Islamic faith; his proposal to ban Muslims
from entering the United States; his subsequent explanation that he would effectuate this
ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which
targeted certain majority-Muslim nations and included a preference for religious
minorities; an advisor’s statement that the President had asked him to find a way to ban
Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which
51
President Trump and his advisors described as having the same policy goals as EO-1.
See, e.g., J.A. 339, 346, 370, 379, 403, 470, 472, 480, 481, 506, 508, 516–18, 522, 798.
Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address
national security interests, including the exclusion of national security agencies from the
decisionmaking process, the post hoc nature of the national security rationale, and
evidence from DHS that EO-2 would not operate to diminish the threat of potential
terrorist activity.
Based on this evidence, we find that Plaintiffs have more than plausibly alleged
that EO-2’s stated national security interest was provided in bad faith, as a pretext for its
religious purpose. And having concluded that the “facially legitimate” reason proffered
by the government is not “bona fide,” we no longer defer to that reason and instead may
“look behind” EO-2. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the judgment).
Since Justice Kennedy’s concurrence in Din, no court has confronted a scenario
where, as here, plaintiffs have plausibly alleged with particularity that an immigration
action was taken in bad faith. We therefore have minimal guidance on what “look[ing]
behind” a challenged immigration action entails. See id. In addressing this issue of first
impression, the Government does not propose a framework for this inquiry. Rather, the
Government summarily asserts that because EO-2 states that it is motivated by national
security interests, it therefore satisfies Mandel’s test. But this only responds to Mandel’s
“facially legitimate” requirement—it reads out Mandel’s “bona fide” test altogether.
Plaintiffs, for their part, suggest that we review their claim using our normal
52
constitutional tools. And in the Establishment Clause context, our normal constitutional
tool for reviewing facially neutral government actions is the test in Lemon v. Kurtzman.
We find for several reasons that because Plaintiffs have made an affirmative
showing of bad faith, applying the Lemon test to analyze EO-2’s constitutionality is
appropriate. First, as detailed above, the Supreme Court has unequivocally stated that the
political branches’ immigration actions are still “subject to important constitutional
limitations.” Zadvydas, 533 U.S. at 695; see also Chadha, 462 U.S. at 941–42. The
constitutional limitation in this case is the Establishment Clause, and this Court’s duty to
uphold the Constitution even in the context of a presidential immigration action counsels
in favor of applying our standard constitutional tool. Second, that Plaintiffs have
satisfied Mandel’s heavy burden to plausibly show that the reason for the challenged
action was proffered in bad faith further supports the application of our established
constitutional doctrine. The deferential framework set forth in Mandel is based in part on
general respect for the political branches’ power in the immigration realm. Once
plaintiffs credibly call into question the political branches’ motives for exercising that
power, our reason for deferring is severely undermined. In the rare case where plaintiffs
plausibly allege bad faith with particularity, more meaningful review—in the form of
constitutional scrutiny—is proper. And third, in the context of this case, there is an
obvious symmetry between Mandel’s “bona fide” prong and the constitutional inquiry
established in Lemon. Both tests ask courts to evaluate the government’s purpose for
acting.
53
Because Plaintiffs have made a substantial and affirmative showing that the
government’s national security purpose was proffered in bad faith, we find it appropriate
to apply our longstanding Establishment Clause doctrine. Applying this doctrine
harmonizes our duty to engage in the substantial deference required by Mandel and its
progeny with our responsibility to ensure that the political branches choose
constitutionally permissible means of exercising their immigration power. We therefore
proceed to “look behind” EO-2 using the framework developed in Lemon to determine if
EO-2 was motivated by a primarily religious purpose, rather than its stated reason of
promoting national security.
2.
To prevail under the Lemon test, the Government must show that the challenged
action (1) “ha[s] a secular legislative purpose,” (2) that “its principal or primary effect
[is] one that neither advances nor inhibits religion,” and (3) that it does “not foster ‘an
excessive government entanglement with religion.’” Lemon, 403 U.S. at 612–13
(quoting Walz v. Tax Comm’n of the City of New York, 397 U.S. 664, 674 (1970))
(citation omitted). The Government must satisfy all three prongs of Lemon to defeat an
Establishment Clause challenge. Edwards v. Aguillard, 482 U.S. 578, 583 (1987). The
dispute here centers on Lemon’s first prong.
In the Establishment Clause context, “purpose matters.” McCreary, 545 U.S. at866 n.14. Under the Lemon test’s first prong, the Government must show that the
challenged action “ha[s] a secular legislative purpose.” Lemon, 403 U.S. at 612.
Accordingly, the Government must show that the challenged action has a secular purpose
54
that is “genuine, not a sham, and not merely secondary to a religious objective.”
McCreary, 545 U.S. at 864; see also Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308
(2000) (“When a governmental entity professes a secular purpose for an arguably
religious policy, the government’s characterization is, of course, entitled to some
deference. But it is nonetheless the duty of the courts to ‘distinguis[h] a sham secular
purpose from a sincere one.’” (quoting Wallace, 472 U.S. at 75 (O’Connor, J., concurring
in the judgment)). The government cannot meet this requirement by identifying any
secular purpose for the challenged action. McCreary, 545 U.S. at 865 n.13 (noting that if
any secular purpose sufficed, “it would leave the purpose test with no real bite, given the
ease of finding some secular purpose for almost any government action”). Rather, the
government must show that the challenged action’s primary purpose is secular. Edwards,
482 U.S. at 594 (finding an Establishment Clause violation where the challenged act’s
“primary purpose . . . is to endorse a particular religious doctrine,” notwithstanding that
the act’s stated purpose was secular).
When a court considers whether a challenged government action’s primary
purpose is secular, it attempts to discern the “official objective . . . from readily
discoverable fact, without any judicial psychoanalysis of a drafter’s heart of hearts.”
McCreary, 545 U.S. at 862. The court acts as a reasonable, “objective observer,” taking
into account “the traditional external signs that show up in the ‘text, legislative history,
and implementation of the statute,’ or comparable official act.” Id. (quoting Santa Fe,
530 U.S. at 308). It also considers the action’s “historical context” and “the specific
sequence of events leading to [its] passage.” Edwards, 482 U.S. at 595. And as a
55
reasonable observer, a court has a “reasonable memor[y],” and it cannot “‘turn a blind
eye to the context in which [the action] arose.’” McCreary, 545 U.S. at 866 (quoting
Santa Fe, 530 U.S. at 315).
The evidence in the record, viewed from the standpoint of the reasonable observer,
creates a compelling case that EO-2’s primary purpose is religious. Then-candidate
Trump’s campaign statements reveal that on numerous occasions, he expressed anti-
Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United
States. For instance, on December 7, 2015, Trump posted on his campaign website a
“Statement on Preventing Muslim Immigration,” in which he “call[ed] for a total and
complete shutdown of Muslims entering the United States until our representatives can
figure out what is going on” and remarked, “[I]t is obvious to anybody that the hatred is
beyond comprehension. . . . [O]ur country cannot be the victims of horrendous attacks by
people that believe only in Jihad, and have no sense of reason or respect for human life.”
J.A. 346. In a March 9, 2016 interview, Trump stated that “Islam hates us,” J.A. 516, and
that “[w]e can’t allow people coming into this country who have this hatred,” J.A. 517.
Less than two weeks later, in a March 22 interview, Trump again called for excluding
Muslims, because “we’re having problems with the Muslims, and we’re having problems
with Muslims coming into the country.” J.A. 522. And on December 21, 2016, when
asked whether recent attacks in Europe affected his proposed Muslim ban, President-
Elect Trump replied, “You know my plans. All along, I’ve proven to be right. 100%
correct.” J.A. 506.
56
As a candidate, Trump also suggested that he would attempt to circumvent
scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion.
On July 17, 2016, in response to a tweet stating, “Calls to ban Muslims from entering the
U.S. are offensive and unconstitutional,” Trump said, “So you call it territories. OK?
We’re gonna do territories.” J.A. 798. One week later, Trump asserted that entry should
be “immediately suspended[ed] . . . from any nation that has been compromised by
terrorism.” J.A. 480. When asked whether this meant he was “roll[ing ]back” his call for
a Muslim ban, he said his plan was an “expansion” and explained that “[p]eople were so
upset when I used the word Muslim,” so he was instead “talking territory instead of
Muslim.” J.A. 481.
Significantly, the First Executive Order appeared to take this exact form, barring
citizens of seven predominantly Muslim countries from entering the United States. And
just before President Trump signed EO-1 on January 27, 2017, he stated, “This is the
‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all
know what that means.” J.A. 403. The next day, presidential advisor and former New
York City Mayor Giuliani appeared on Fox News and asserted that “when [Trump] first
announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission
together. Show me the right way to do it legally.’” J.A. 508.
Shortly after courts enjoined the First Executive Order, President Trump issued
EO-2, which the President and members of his team characterized as being substantially
similar to EO-1. EO-2 has the same name and basic structure as EO-1, but it does not
include a preference for religious-minority refugees and excludes Iraq from its list of
57
Designated Countries. EO-2, § 1(e). It also exempts certain categories of nationals from
the Designated Countries and institutes a waiver process for qualifying individuals. EO-
2, § 3(b), (c). Senior Policy Advisor Miller described the changes to EO-2 as “mostly
minor technical differences,” and said that there would be “the same basic policy
outcomes for the country.” J.A. 339. White House Press Secretary Spicer stated that
“[t]he principles of the [second] executive order remain the same.” J.A. 379. And
President Trump, in a speech at a rally, described EO-2 as “a watered down version of the
first order.” Appellees’ Br. 7 (citing Reilly, supra). These statements suggest that like
EO-1, EO-2’s purpose is to effectuate the promised Muslim ban, and that its changes
from EO-1 reflect an effort to help it survive judicial scrutiny, rather than to avoid
targeting Muslims for exclusion from the United States.
These statements, taken together, provide direct, specific evidence of what
motivated both EO-1 and EO-2: President Trump’s desire to exclude Muslims from the
United States. The statements also reveal President Trump’s intended means of
effectuating the ban: by targeting majority-Muslim nations instead of Muslims explicitly.
And after courts enjoined EO-1, the statements show how President Trump attempted to
preserve its core mission: by issuing EO-2—a “watered down” version with “the same
basic policy outcomes.” J.A. 339. These statements are the exact type of “readily
discoverable fact[s]” that we use in determining a government action’s primary purpose.
McCreary, 545 U.S. at 862. They are explicit statements of purpose and are attributable
either to President Trump directly or to his advisors. We need not probe anyone’s heart
of hearts to discover the purpose of EO-2, for President Trump and his aides have
58
explained it on numerous occasions and in no uncertain terms. See Glassroth v. Moore,
335 F.3d 1282, 1296 (11th Cir. 2003) (“Besides, no psychoanalysis or dissection is
required here, where there is abundant evidence, including his own words, of the
[government actor’s] purpose.”). EO-2 cannot be read in isolation from the statements of
planning and purpose that accompanied it, particularly in light of the sheer number of
statements, their nearly singular source, and the close connection they draw between the
proposed Muslim ban and EO-2 itself. 16 See McCreary, 545 U.S. at 866 (rejecting notion
that court could consider only “the latest news about the last in a series of governmental
actions, however close they may all be in time and subject”). The reasonable observer
could easily connect these statements to EO-2 and understand that its primary purpose
appears to be religious, rather than secular.
The Government argues, without meaningfully addressing Plaintiffs’ proffered
evidence, that EO-2’s primary purpose is in fact secular because it is facially neutral and
operates to address the risks of potential terrorism without targeting any particular
religious group. Appellants’ Br. 42–44. That EO-2’s stated objective is religiously
neutral is not dispositive; the entire premise of our review under Lemon is that even
facially neutral government actions can violate the Establishment Clause. See Lemon,
403 U.S. at 612 (recognizing that “a law ‘respecting’ . . . the establishment of religion[] is
16
We reject the government’s contentions that none of these statements “in
substance corresponds to [Section 2(c)],” Appellants’ Br. 52, and that Section 2(c) “bears
no resemblance to a ‘Muslim ban,’” id. at 53. These statements show that President
Trump intended to effectuate his proposed Muslim ban by targeting predominantly
Muslim nations, rather than Muslims explicitly. Section 2(c) does precisely that.
59
not always easily identifiable as one,” and creating a three-part test for discerning when a
facially neutral law violates the Establishment Clause); see also Santa Fe, 530 U.S. at
315 (“Our examination [under Lemon’s purpose prong] . . . need not stop at an analysis of
the text of the policy.”). We therefore reject the Government’s suggestion that EO-2’s
facial neutrality might somehow fully answer the question of EO-2’s primary purpose. 17
The Government’s argument that EO-2’s primary purpose is related to national
security, Appellants’ Br. 43–44, is belied by evidence in the record that President Trump
issued the First Executive Order without consulting the relevant national security
agencies, J.A. 397, and that those agencies only offered a national security rationale after
EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national
security rationale, with one report stating that “most foreign-born, US-based violent
17
Plaintiffs suggest that EO-2 is not facially neutral, because by directing the
Secretary of Homeland Security to collect data on “honor killings” committed in the
United States by foreign nationals, EO-2 incorporates “a stereotype about Muslims that
the President had invoked in the months preceding the Order.” Appellees’ Br. 5, 7; see
J.A. 598 (reproducing Trump’s remarks in a September 2016 speech in Arizona in which
he stated that applicants from countries like Iraq and Afghanistan would be “asked their
views about honor killings,” because “a majority of residents [in those countries] say that
the barbaric practice of honor killings against women are often or sometimes justified”).
Numerous amici explain that invoking the specter of “honor killings” is a well-worn
tactic for stigmatizing and demeaning Islam and painting the religion, and its men, as
violent and barbaric. See, e.g., Brief for New York University as Amicus Curiae
Supporting Appellees 21, ECF No. 82-1; Brief for Muslim Justice League, et al., as
Amici Curiae Supporting Appellees 17-18, ECF No. 152-1; Brief for History Professors
and Scholars as Amici Curiae Supporting Appellees 2–3, ECF No. 154-1; Brief for
Constitutional Law Scholars as Amici Curiae Supporting Appellees 19 n.3, ECF No. 173-
1; Brief for Members of the Clergy, et al., as Amici Curiae Supporting Appellees 13,
ECF No. 179-1. The Amici Constitutional Law Scholars go so far as to call the reference
to honor killings “anti-Islamic dog-whistling.” Brief for Constitutional Law Scholars 19
n.3. We find this text in EO-2 to be yet another marker that its national security purpose
is secondary to its religious purpose.
60
extremists likely radicalized several years after their entry to the United States, limiting
the ability of screening and vetting officials to prevent their entry because of national
security concerns.” J.A. 426. According to former National Security Officials, Section
2(c) serves “no legitimate national security purpose,” given that “not a single American
has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the
last forty years” and that there is no evidence of any new security risks emanating from
these countries. Corrected Brief for Former National Security Officials as Amici Curiae
Supporting Appellees 5–8, ECF No. 126-1. 18 Like the district court, we think this strong
evidence that any national security justification for EO-2 was secondary to its primary
religious purpose and was offered as more of a “litigating position” than as the actual
purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new
statements of purpose . . . as a litigating position” where they were offered to explain the
third iteration of a previously enjoined religious display). And EO-2’s text does little to
bolster any national security rationale: the only examples it provides of immigrants born
abroad and convicted of terrorism-related crimes in the United States include two
Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered
the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The
Government’s asserted national security purpose is therefore no more convincing as
applied to EO-2 than it was to EO-1.
18
A number of amici were current on the relevant intelligence as of January 20,
2017. Id. at 9.
61
Relatedly, the Government argues that EO-2’s operation “confirms its stated
purpose.” Appellants’ Br. 43. “[I]t applies to six countries based on risk, not religion;
and in those six countries, the suspension applies irrespective of any alien’s religion.” Id.
In support of its argument that EO-2 does not single out Muslims, the Government notes
that these six countries are either places where ISIS has a heavy presence (Syria), state
sponsors of terrorism (Iran, Sudan, and Syria), or safe havens for terrorists (Libya,
Somalia, and Yemen). Appellants’ Br. 5–6. The Government also points out that the six
Designated Countries represent only a small proportion of the world’s majority-Muslim
nations, and EO-2 applies to everyone in those countries, even non-Muslims. Id. at 44.
This shows, the Government argues, that EO-2’s primary purpose is secular. The trouble
with this argument is that EO-2’s practical operation is not severable from the myriad
statements explaining its operation as intended to bar Muslims from the United States.
And that EO-2 is underinclusive by targeting only a small percentage of the world’s
majority-Muslim nations and overinclusive for targeting all citizens, even non-Muslims,
in the Designated Countries, is not responsive to the purpose inquiry. This evidence
might be relevant to our analysis under Lemon’s second prong, which asks whether a
government act has the primary effect of endorsing or disapproving of religion, see Lynch
v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., concurring), but it does not answer
whether the government acted with a primarily religious purpose to begin with. If we
limited our purpose inquiry to review of the operation of a facially neutral order, we
would be caught in an analytical loop, where the order would always survive scrutiny. It
is for this precise reason that when we attempt to discern purpose, we look to more than
62
just the challenged action itself. And here, when we consider the full context of EO-2, it
is evident that it is likely motivated primarily by religion. We do not discount that there
may be a national security concern motivating EO-2; we merely find it likely that any
such purpose is secondary to EO-2’s religious purpose.
The Government separately contends that our purpose inquiry should not extend to
“extrinsic evidence” that is beyond EO-2’s relevant context. Appellants’ Br. 45. The
Government first argues that we should not look beyond EO-2’s “text and operation.” Id.at 45–46. But this is clearly incorrect, as the Supreme Court has explicitly stated that we
review more than just the face of a challenged action. See, e.g., Bd. of Educ. of Kiryas
Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 699 (1994) (“[O]ur [Establishment Clause]
analysis does not end with the text of the statute at issue.”) (citing Church of the Lukumi
Babalu Aye, 508 U.S. at 534). 19
19
The Government separately suggests that we should limit our review to EO-2’s
text and operation based on “the Constitution’s structure and its separation of powers,”
and the “‘presumption of regularity’ that attaches to all federal officials’ actions.”
Appellants’ Br. 45 (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14 (1926)).
In support of this point, the Government relies on pre-McCreary cases discussing,
variously, judicial deference to an executive official’s decision to deport an alien who had
violated the terms of his admission to the United States, Reno v. Am.-Arab Anti-
Discrimination Comm., 525 U.S. 471, 491 (1999), the President’s absolute immunity
from damages liability based on his or her official acts, Nixon v. Fitzgerald, 457 U.S.
731, 749 (1982), and the presumptive privilege we afford a President’s conversations and
correspondence, United States v. Nixon, 418 U.S. 683, 708 (1974). These cases suggest
that in certain circumstances, we insulate the President and other executive officials from
judicial scrutiny in order to protect and promote the effective functioning of the executive
branch. But these cases do not circumscribe our review of Establishment Clause
challenges or hold that when a President’s official acts violate the Constitution, the acts
themselves are immune from judicial review. We find no support in this line of cases for
the Government’s argument that our review of EO-2’s context is so limited. In fact, the
(Continued)
63
The Government next argues that even if we do look beyond EO-2 itself, under
McCreary, we are limited to considering only “the operative terms of governmental
action and official pronouncements,” Appellants’ Br. 46, which we understand to mean
only EO-2 itself and a letter signed by the Attorney General and the Secretary of State
that largely echoes EO-2’s text, id. at 8 n.3 (citing Letter, supra). We find no support for
this view in McCreary. The McCreary Court considered “the traditional external signs
that show up in the ‘text, legislative history, and implementation of the [challenged
action],’” 545 U.S. at 862 (quoting Santa Fe, 530 U.S. at 308), but it did not limit other
courts’ review to those particular terms. Id. Nor did it make such an artificial distinction
between “official” and “unofficial” context. Rather, it relied on principles of “common
sense” and the “reasonable observer[’]s . . . reasonable memor[y]” to cull the relevant
context surrounding the challenged action. Id. at 866. The Government would have us
abandon this approach in favor of an unworkable standard that is contrary to the well-
established framework for considering the context of a challenged government action.
And finally, the Government argues that even if we could consider unofficial acts
and statements, we should not rely on campaign statements. Appellants’ Br. 49. Those
statements predate President Trump’s constitutionally significant “transition from private
life to the Nation’s highest public office,” and as such, they are less probative than
Supreme Court has suggested quite the opposite. See Zadvydas, 533 U.S. at 695(“Executive and Legislative Branch decisionmaking . . . power is subject to important
constitutional limitations.” (citing Chadha, 462 U.S. at 941–42)).
64
official statements, the Government contends. Id. at 51. 20 We recognize that in many
cases, campaign statements may not reveal all that much about a government actor’s
purpose. But we decline to impose a bright-line rule against considering campaign
statements, because as with any evidence, we must make an individualized determination
as to a statement’s relevancy and probative value in light of all the circumstances. The
campaign statements here are probative of purpose because they are closely related in
time, attributable to the primary decisionmaker, and specific and easily connected to the
challenged action. See Glassroth, 335 F.3d at 1297 (reviewing an elected judge’s
campaign materials that proclaimed him the “Ten Commandment’s Judge” as part of its
inquiry into the constitutionality of a Ten Commandments display he installed); see also
Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 463 (1982) (considering facially
20
The government also suggests that we can never rely on private communications
to impute an improper purpose to a government actor. See, e.g., Modrovich v. Allegheny
County, 385 F.3d 397, 411–12 (3d Cir. 2004) (limiting its review to statements made by
the elected officials who oversaw the government action). But this is incorrect. These
cases merely establish that the motives of people not involved in the decisionmaking
process cannot alone evince the government’s motive. See Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“[R]emarks by non-decisionmakers or
remarks unrelated to the decisionmaking process itself are not direct evidence of
discrimination.” (emphasis added)). But when those statements reveal something about
the government’s purpose, they are certainly part of the evidence we review for purpose.
In McCreary, the Court noted that a pastor had delivered a religious message at the
ceremony for the challenged religious display. 545 U.S. at 869. Based on this and other
evidence of purpose, the Court concluded that “[t]he reasonable observer could only
think that the [government] meant to emphasize and celebrate the [display’s] religious
message.” Id. In any event, none of these cases contemplate the situation here, where the
private speaker and the government actor are one and the same. We need not impute
anyone’s purpose to anyone else, for the same person has espoused these intentions all
along. The distinction between candidate and elected official is thus an artificial one
where the inquiry is only whether the reasonable observer would understand the
candidate’s statements to explain the purpose of his actions once elected.
65
neutral campaign statements related to bussing in an equal protection challenge);
California v. United States, 438 U.S. 645, 663–64 (1978) (referring to candidates’
political platforms when considering the Reclamation Act of 1902); Village of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977) (explaining that in the
equal protection context, “[w]hen there is [] proof that a discriminatory purpose has been
a motivating factor in the decision,” a court may consider “contemporary statements by
members of the decisionmaking body”).
Just as the reasonable observer’s “world is not made brand new every morning,”
McCreary, 545 U.S. at 866, nor are we able to awake without the vivid memory of these
statements. We cannot shut our eyes to such evidence when it stares us in the face, for
“there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174
(Chiswick Press ed., 1892). If and when future courts are confronted with campaign or
other statements proffered as evidence of governmental purpose, those courts must
similarly determine, on a case-by-case basis, whether such statements are probative
evidence of governmental purpose. Our holding today neither limits nor expands their
review. 21
The Government argues that reviewing campaign statements here would
encourage scrutiny of all religious statements ever made by elected officials, even
remarks from before they assumed office. Appellants’ Br. 49–50. But our review creates
21
This finding comports with the McCreary Court’s observation that “past actions
[do not] forever taint” a government action, 545 U.S. at 873–74. Whether a statement
continues to taint a government action is a fact-specific inquiry for the court evaluating
the statement.
66
no such sweeping implications, because as the Supreme Court has counseled, our purpose
analysis “demands a sensitive inquiry into such circumstantial and direct evidence of
intent as may be available.” Village of Arlington Heights, 429 U.S. at 266; see also Lee
v. Weisman, 505 U.S. 577, 597 (1992) (“Our Establishment Clause jurisprudence remains
a delicate and fact-sensitive one . . . .”). Just as a reasonable observer would not
understand general statements of religious conviction to inform later government action,
nor would we look to such statements as evidence of purpose. A person’s particular
religious beliefs, her college essay on religious freedom, a speech she gave on the Free
Exercise Clause—rarely, if ever, will such evidence reveal anything about that person’s
actions once in office. For a past statement to be relevant to the government’s purpose,
there must be a substantial, specific connection between it and the challenged
government action. And here, in this highly unique set of circumstances, there is a direct
link between the President’s numerous campaign statements promising a Muslim ban that
targets territories, the discrete action he took only one week into office executing that
exact plan, and EO-2, the “watered down” version of that plan that “get[s] just about
everything,” and “in some ways, more.” J.A. 370.
For similar reasons, we reject the Government’s argument that our review of these
campaign statements will “inevitably ‘chill political debate during campaigns.’”
Appellants’ Br. 50 (quoting Phelps v. Hamilton, 59 F.3d 1058, 1068 (10th Cir. 1995)).
Not all—not even most—political debate will have any relevance to a challenged
government action. Indeed, this case is unique not because we are considering campaign
statements, but because we have such directly relevant and probative statements of
67
government purpose at all. See Smith v. Town of Clarkton, 682 F.2d 1055, 1064 (4th Cir.
1982) (observing that government actors “seldom, if ever, announce on the record that
they are pursuing a particular course of action because of their desire to discriminate”).
To the extent that our review chills campaign promises to condemn and exclude entire
religious groups, we think that a welcome restraint.
Lastly, the Government contends that we are ill-equipped to “attempt[] to assess
what campaign statements reveal about the motivation for later action.” Appellants’ Br.
50. The Government argues that to do so would “mire [us] in a swamp of unworkable
litigation,” id. (quoting Amended Order, Washington v. Trump, No. 17-35105, slip op. at
13 (9th Cir. Mar. 17, 2017) (Kozinski, J., dissenting from denial of reconsideration en
banc)), and “forc[e us] to wrestle with intractable questions,” such as “the level of
generality at which a statement must be made, by whom, and how long after its utterance
the statement remains probative.” Id. But discerning the motives behind a challenged
government action is a well-established part of our purpose inquiry. McCreary, 545 U.S.
at 861 (“Examination of purpose is a staple of statutory interpretation that makes up the
daily fare of every appellate court in the country, and governmental purpose is a key
element of a good deal of constitutional doctrine.” (citations omitted)). As part of this
inquiry, courts regularly evaluate decisionmakers’ statements that show their purpose for
acting. See, e.g., Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d 784, 801 (10th Cir.
2009) (considering news reports quoting county commissioners who described both their
determination to keep challenged religious display at issue and the strength of their
religious beliefs); Glassroth, 355 F.3d at 1297 (reviewing elected judge’s campaign
68
materials for evidence of his purpose in installing religious display); Brown v. Gilmore,
258 F.3d 265, 277 (4th Cir. 2001) (reviewing state legislators’ statements in discerning
purpose of statute challenged under the Establishment Clause); see also Edwards, 482
U.S. at 586–87 (looking to statute’s text together with its sponsor’s public comments to
discern its purpose). And the purpose inquiry is not limited to Establishment Clause
challenges; we conduct this analysis in a variety of contexts. See, e.g., United States v.
Windsor, 133 S. Ct. 2675, 2693 (2013) (striking down federal statute based in part on
“strong evidence” that “the congressional purpose [was] to influence or interfere with
state sovereign choices about who may be married”); Pers. Adm’r of Mass. v. Feeney,
442 U.S. 256, 279–80 (1979) (upholding public hiring preferences based in part on
finding that government had not created preferences with purpose of discriminating on
the basis of sex); N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 219 (4th
Cir. 2016), cert. denied sub nom. North Carolina v. N.C. State Conference of NAACP,
No. 16-833, 2017 WL 2039439 (U.S. May 15, 2017) (concluding that challenged voting
restrictions were unconstitutional because they were motivated by racially discriminatory
intent). We therefore see nothing “intractable” about evaluating a statement’s probative
value based on the identity of the speaker and how specifically the statement relates to
the challenged government action, for this is surely a routine part of constitutional
analysis. And this analysis is even more straightforward here, because we are not
attempting to discern motive from many legislators’ statements, as in Brown, but rather
are looking primarily to one person’s statements to discern that person’s motive for
taking a particular action once in office.
69
The Government has repeatedly asked this Court to ignore evidence, circumscribe
our own review, and blindly defer to executive action, all in the name of the
Constitution’s separation of powers. We decline to do so, not only because it is the
particular province of the judicial branch to say what the law is, but also because we
would do a disservice to our constitutional structure were we to let its mere invocation
silence the call for meaningful judicial review. The deference we give the coordinate
branches is surely powerful, but even it must yield in certain circumstances, lest we
abdicate our own duties to uphold the Constitution.
EO-2 cannot be divorced from the cohesive narrative linking it to the animus that
inspired it. In light of this, we find that the reasonable observer would likely conclude
that EO-2’s primary purpose is to exclude persons from the United States on the basis of
their religious beliefs. We therefore find that EO-2 likely fails Lemon’s purpose prong in
violation of the Establishment Clause. 22 Accordingly, we hold that the district court did
not err in concluding that Plaintiffs are likely to succeed on the merits of their
Establishment Clause claim.
22
What is more, we think EO-2 would likely fail any purpose test, for whether
religious animus motivates a government action is a fundamental part of our
Establishment Clause inquiry no matter the degree of scrutiny that applies. See, e.g.,
Town of Greece v. Galloway, 134 S. Ct. 1811, 1826 (2014) (upholding town’s legislative
prayer policy in part because “[i]n no instance did town leaders signal disfavor toward
nonparticipants or suggest that their stature in the community was in any way
diminished”); Hernandez v. Comm’r of Internal Revenue, 490 U.S. 680, 696 (1989)
(finding that the challenged statute satisfied Lemon’s purpose prong in part because
“there is no allegation that [it] was born of animus”); Lynch, 465 U.S. at 673 (stating that
the Establishment Clause “forbids hostility toward any [religion]”); see also Brief for
Constitutional Law Scholars 6–11. There is simply too much evidence that EO-2 was
motivated by religious animus for it to survive any measure of constitutional review.
70
B.
Because we uphold the district court’s conclusion that Plaintiffs are likely to
succeed on the merits of their Establishment Clause claim, we next consider whether
Plaintiffs have demonstrated that they are likely to suffer irreparable harm in the absence
of a preliminary injunction. Winter, 555 U.S. at 22; Musgrave, 553 F.3d at 298. As we
have previously recognized, “in the context of an alleged violation of First Amendment
rights, a plaintiff’s claimed irreparable harm is inseparably linked to the likelihood of
success on the merits.” Centro Tepeyac v. Montgomery County, 722 F.3d 184, 190 (4th
Cir. 2013) (en banc) (quoting Centro Tepeyac v. Montgomery County, 779 F. Supp. 2d
456, 471 (D. Md. 2011)). Accordingly, our finding that Plaintiffs are likely to succeed on
the merits of their constitutional claim counsels in favor of finding that in the absence of
an injunction, they will suffer irreparable harm.
Indeed, the Supreme Court has stated in no uncertain terms that “loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes
irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion); see
also Johnson v. Bergland, 586 F.2d 993, 995 (4th Cir. 1978) (“Violations of first
amendment rights constitute per se irreparable injury.”). Though the Elrod Court was
addressing freedom of speech and association, our sister circuits have interpreted it to
apply equally to Establishment Clause violations. See, e.g., Chaplaincy of Full Gospel
Churches v. England, 454 F.3d 290, 302 (D.C. Cir. 2006); Ingebretsen v. Jackson Pub.
Sch. Dist., 88 F.3d 274, 280 (5th Cir. 1996); Parents’ Ass’n of P.S. 16 v. Quinones, 803
F.2d 1235, 1242 (2d Cir. 1986); ACLU of Ill. v. City of St. Charles, 794 F.2d 265, 274
71
(7th Cir. 1986). We agree with these courts that because of “the inchoate, one-way
nature of Establishment Clause violations,” they create the same type of immediate,
irreparable injury as do other types of First Amendment violations. Chaplaincy of Full
Gospel Churches, 454 F.3d at 303; see also id. (“[W]hen an Establishment Clause
violation is alleged, infringement occurs the moment the government action takes
place . . . .”). We therefore find that Plaintiffs are likely to suffer irreparable harm if
Section 2(c) of EO-2 takes effect.
C.
Even if Plaintiffs are likely to suffer irreparable harm in the absence of a
preliminary injunction, we still must determine that the balance of the equities tips in
their favor, “pay[ing] particular regard for the public consequences in employing the
extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312
(1982). This is because “courts of equity may go to greater lengths to give ‘relief in
furtherance of the public interest than they are accustomed to go when only private
interests are involved.’” E. Tenn. Nat. Gas Co. v. Sage, 361 F.3d 808, 826 (4th Cir.
2004) (quoting Virginian Ry. Co. v. Sys. Fed’n No. 40, 300 U.S. 515, 552 (1937)). As the
district court did, we consider the balance of the equities and the public interest factors
together.
The Government first contends that “the injunction causes [it] direct, irreparable
injury” that outweighs the irreparable harm to Plaintiffs because “‘no governmental
interest is more compelling than the security of the Nation.’” Appellants’ Br. 54 (quoting
Haig v. Agee, 453 U.S. 280, 307 (1981)). When it comes to national security, the
72
Government argues, the judicial branch “should not second-guess” the President’s
“‘[p]redictive judgment[s].’” Appellants’ Br. 55 (quoting Dep’t of the Navy v. Egan, 484
U.S. 518, 529 (1988)). The Government further argues that the injunction causes
institutional injury, because according to two single-Justice opinions, “[a]ny time a State
is enjoined by a court from effectuating statutes enacted by representatives of its people,
it suffers a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 1303 (2012)
(Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,
434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)). The Government contends
that this principle applies here because the President “represents the people of all 50
states.” Appellants’ Reply Br. 25.
At the outset, we reject the notion that the President, because he or she represents
the entire nation, suffers irreparable harm whenever an executive action is enjoined. This
Court has held that the Government is “in no way harmed by issuance of a preliminary
injunction which prevents [it] from enforcing restrictions likely to be found
unconstitutional.” Centro Tepeyac, 722 F.3d at 191 (quoting Giovani Carandola, Ltd. v.
Bason, 303 F.3d 507, 521 (4th Cir. 2002)). “If anything,” we said, “the system is
improved by such an injunction.” Id. (quoting Giovani Carandola, 303 F.3d at 521).
Because Section 2(c) of EO-2 is likely unconstitutional, allowing it to take effect would
therefore inflict the greater institutional injury. And we are not persuaded that the
general deference we afford the political branches ought to nevertheless tip the equities in
the Government’s favor, for even the President’s actions are not above judicial scrutiny,
73
and especially not where those actions are likely unconstitutional. See Zadvydas, 533
U.S. at 695; Chadha, 462 U.S. at 941–42.
We are likewise unmoved by the Government’s rote invocation of harm to
“national security interests” as the silver bullet that defeats all other asserted injuries. See
United States v. Robel, 389 U.S. 258, 264 (1967) (“Th[e] concept of ‘national defense’
cannot be deemed an end in itself, justifying any exercise of legislative power designed to
promote such a goal. Implicit in the term ‘national defense’ is the notion of defending
those values and ideals which set this Nation apart. . . . [O]ur country has taken singular
pride in the democratic ideals enshrined in its Constitution, and the most cherished of
those ideals have found expression in the First Amendment. It would indeed be ironic if,
in the name of national defense, we would sanction the subversion of one of those
liberties . . . which makes the defense of the Nation worthwhile.”). National security may
be the most compelling of government interests, but this does not mean it will always tip
the balance of the equities in favor of the government. See Holder v. Humanitarian Law
Project, 561 U.S. 1, 34 (2010) (agreeing with the dissent that the government’s “authority
and expertise in [national security and foreign relations] matters do not automatically
trump the Court’s own obligation to secure the protection that the Constitution grants to
individuals” (quoting id. at 61 (Breyer, J., dissenting))). A claim of harm to national
security must still outweigh the competing claim of injury. Here and elsewhere, the
Government would have us end our inquiry without scrutinizing either Section 2(c)’s
stated purpose or the Government’s asserted interests, but “unconditional deference to a
government agent’s invocation of ‘emergency’ . . . has a lamentable place in our history,”
74
Patrolmen’s Benevolent Ass’n of New York v. City of New York, 310 F.3d 43, 53–54 (2d.
Cir. 2002) (citing Korematsu v. United States, 323 U.S. 214, 223 (1944)), and is
incompatible with our duty to evaluate the evidence before us.
As we previously determined, the Government’s asserted national security interest
in enforcing Section 2(c) appears to be a post hoc, secondary justification for an
executive action rooted in religious animus and intended to bar Muslims from this
country. We remain unconvinced that Section 2(c) has more to do with national security
than it does with effectuating the President’s promised Muslim ban. We do not discount
that EO-2 may have some national security purpose, nor do we disclaim that the
injunction may have some impact on the Government. But our inquiry, whether for
determining Section 2(c)’s primary purpose or for weighing the harm to the parties, is
one of balance, and on balance, we cannot say that the Government’s asserted national
security interest outweighs the competing harm to Plaintiffs of the likely Establishment
Clause violation.
For similar reasons, we find that the public interest counsels in favor of upholding
the preliminary injunction. As this and other courts have recognized, upholding the
Constitution undeniably promotes the public interest. Giovani Carandola, 303 F.3d at
521 (“[U]pholding constitutional rights surely serves the public interest.”); see also
Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“[I]t is always in the public
interest to prevent the violation of a party’s constitutional rights.” (quoting Sammartano
v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002))); Dayton Area Visually
Impaired Pers., Inc. v. Fisher, 70 F.3d 1474, 1490 (6th Cir. 1995) (“[T]he public as a
75
whole has a significant interest in ensuring . . . protection of First Amendment
liberties.”). These cases recognize that when we protect the constitutional rights of the
few, it inures to the benefit of all. And even more so here, where the constitutional
violation injures Plaintiffs and in the process permeates and ripples across entire religious
groups, communities, and society at large.
When the government chooses sides on religious issues, the “inevitable result” is
“hatred, disrespect and even contempt” towards those who fall on the wrong side of the
line. Engel v. Vitale, 370 U.S. 421, 431 (1962). Improper government involvement with
religion “tends to destroy government and to degrade religion,” id., encourage
persecution of religious minorities and nonbelievers, and foster hostility and division in
our pluralistic society. The risk of these harms is particularly acute here, where from the
highest elected office in the nation has come an Executive Order steeped in animus and
directed at a single religious group. “The fullest realization of true religious liberty
requires that government neither engage in nor compel religious practices, that it effect
no favoritism among sects or between religion and nonreligion, and that it work
deterrence of no religious belief.” Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203,
305 (1963) (Goldberg, J. concurring). We therefore conclude that enjoining Section 2(c)
promotes the public interest of the highest order. And because Plaintiffs have satisfied all
the requirements for securing a preliminary injunction, we find that the district court did
not abuse its discretion in enjoining Section 2(c) of EO-2.
76
V.
Lastly, having concluded that Plaintiffs are entitled to a preliminary injunction, we
address the scope of that injunction. The Government first argues that the district court
erred by enjoining Section 2(c) nationwide, and that any injunctive relief should be
limited solely to Plaintiffs.
It is well-established that “district courts have broad discretion when fashioning
injunctive relief.” Ostergren v. Cuccinelli, 615 F.3d 263, 288 (4th Cir. 2010).
Nevertheless, “their powers are not boundless.” Id. The district court’s choice of relief
“should be carefully addressed to the circumstances of the case,” Va. Soc’y for Human
Life, Inc. v. FEC, 263 F.3d 379, 393 (4th Cir. 2001), overruled on other grounds by Real
Truth About Abortion, Inc. v. FEC, 681 F.3d 544 (4th Cir. 2012), and “should be no more
burdensome to the defendant than necessary to provide complete relief to the plaintiffs,”
Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). Courts may issue
nationwide injunctions consistent with these principles. See Richmond Tenants Org., Inc.
v. Kemp, 956 F.2d 1300, 1308–09 (4th Cir. 1992).
The district court here found that a number of factors weighed in favor of a
nationwide injunction, and we see no error. First, Plaintiffs are dispersed throughout the
United States. See J.A. 263, 273; see also Richmond Tenants Org., 956 F.2d at 1308–09
(upholding nationwide injunction where challenged conduct caused irreparable harm in
myriad jurisdictions across the country). Second, nationwide injunctions are especially
appropriate in the immigration context, as Congress has made clear that “the immigration
laws of the United States should be enforced vigorously and uniformly.” Texas v. United
77
States, 809 F.3d 134, 187–88 (5th Cir. 2015), aff’d by an equally divided court, 136 S. Ct.
2271 (2016) (quoting Immigration Reform and Control Act of 1996, Pub. L. No. 99-603,
§ 115(1), 100 Stat. 3359, 3384); see also Arizona v. United States, 132 S. Ct. 2492, 2502
(2015) (describing the “comprehensive and unified system” of “track[ing] aliens within
the Nation’s borders”). And third, because Section 2(c) likely violates the Establishment
Clause, enjoining it only as to Plaintiffs would not cure the constitutional deficiency,
which would endure in all Section 2(c)’s applications. Its continued enforcement against
similarly situated individuals would only serve to reinforce the “message” that Plaintiffs
“are outsiders, not full members of the political community.” Santa Fe, 530 U.S. at 309(quoting Lynch, 465 U.S. at 688 (O’Connor, J., concurring)). For these reasons, we find
that the district court did not abuse its discretion in concluding that a nationwide
injunction was “necessary to provide complete relief.” Madsen, 512 U.S. at 778.
Finally, the Government argues that the district court erred by issuing the
injunction against the President himself. Appellants’ Br. 55 (citing Mississippi v.
Johnson, 71 U.S. (4 Wall.) 475, 501 (1866) (finding that a court could not enjoin the
President from carrying out an act of Congress)). We recognize that “in general, ‘this
court has no jurisdiction of a bill to enjoin the President in the performance of his official
duties,’” Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992) (opinion of O’Connor,
J.) (quoting Johnson, 71 U.S. at 501), and that a “grant of injunctive relief against the
President himself is extraordinary, and should . . . raise[] judicial eyebrows,” id. at 802.
In light of the Supreme Court’s clear warning that such relief should be ordered only in
the rarest of circumstances we find that the district court erred in issuing an injunction
78
against the President himself. We therefore lift the injunction as to the President only.
The court’s preliminary injunction shall otherwise remain fully intact.
To be clear, our conclusion does not “in any way suggest[] that Presidential action
is unreviewable. Review of the legality of Presidential action can ordinarily be obtained
in a suit seeking to enjoin the officers who attempt to enforce the President’s directive.”
Franklin, 505 U.S. at 828 (Scalia, J., concurring in part and concurring in the judgment).
Even though the President is not “directly bound” by the injunction, we “assume it is
substantially likely that the President . . . would abide by an authoritative interpretation”
of Section 2(c) of the Second Executive Order. Id. at 803 (opinion of O’Connor, J.).
VI.
For all of these reasons, we affirm in part and vacate in part the preliminary
injunction awarded by the district court. We also deny as moot Defendants’ motion for a
stay pending appeal.
AFFIRMED IN PART, VACATED IN PART
79
TRAXLER, Circuit Judge, concurring in the judgment:
I concur in the judgment of the majority insofar as it affirms the district court’s
issuance of a nationwide preliminary injunction as to Section 2(c) of the Executive Order
against the officers, agents, and employees of the Executive Branch of the United States,
and anyone acting under their authorization or direction, who would attempt to enforce it,
because it likely violates the Establishment Clause of the United States Constitution. I
also concur in the judgment of the majority to lift the injunction as to President Trump
himself.
80
BARBARA MILANO KEENAN, Circuit Judge, with whom JUDGE THACKER joins
except as to Part II.A.i., concurring in part and concurring in the judgment:
I concur in the majority opinion’s analysis with respect to its conclusions: (1) that
the stated “national security purpose” of the Second Executive Order 1 likely fails
Mandel’s “bona fide” test and violates the Establishment Clause, see Kleindienst v.
Mandel, 408 U.S. 753 (1972); and (2) that the record before us supports the award of a
nationwide injunction. 2 I write separately to express my view that although the plaintiffs
are unlikely to succeed on the merits of their claim under Section 1152(a)(1)(A), their
request for injunctive relief under the INA nevertheless is supported by the failure of
Section 2(c) to satisfy the threshold requirement of Section 1182(f) for the President’s
lawful exercise of authority. 3
1
Exec. Order No. 13,780, Protecting the Nation from Foreign Terrorist Entry Into
the United States, 82 Fed. Reg. 13,209 (Mar. 6, 2017).
2
Based on my view that the Second Executive Order does not satisfy the threshold
requirement of 8 U.S.C. § 1182(f) for exercise of a president’s authority under that
statute, I would conclude that the Second Executive Order is not “facially legitimate”
within the meaning of Mandel, 408 U.S. at 770. Nevertheless, I join in the majority
opinion’s holding that the plaintiffs are likely to succeed on the merits of their
Establishment Clause claim, based on my further conclusion that the Second Executive
Order likely fails Mandel’s “bona fide” test. In reaching this conclusion, I additionally
note that I do not read the majority opinion as holding that a plausible allegation of bad
faith alone would justify a court’s decision to look behind the government’s proffered
justification for its action. Rather, in accordance with Justice Kennedy’s concurrence in
Din, a plaintiff must make an affirmative showing of bad faith to satisfy the “bona fide”
requirement of Mandel. See Kerry v. Din, 135 S. Ct. 2128, 2140–41 (2015) (Kennedy, J.,
concurring in the judgment).
3
We may consider this facial deficiency not raised by the plaintiffs because this
defect is apparent from the record. See Drager v. PLIVA USA, Inc., 741 F.3d 470, 474
(Continued)
81
I.
As an initial matter, I conclude that John Doe #1 has standing to raise a claim that
the Second Executive Order violates the INA. 4 To establish standing under Article III, a
plaintiff must show that he has “(1) suffered an injury in fact, (2) that is fairly traceable to
the challenged conduct of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). A
plaintiff seeking “to enjoin a future action must demonstrate that he is immediately in
danger of sustaining some direct injury as the result” of the challenged conduct, which
threat of injury is “both real and immediate.” Beck v. McDonald, 848 F.3d 262, 277 (4th
Cir. 2017) (internal quotation marks omitted) (quoting Lebron v. Rumsfeld, 670 F.3d 540,
560 (4th Cir. 2012)).
Prolonged separation from one’s family members constitutes a cognizable injury-
in-fact. See Legal Assistance for Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d
469, 471 (D.C. Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996) (per curiam). As
the government concedes, by barring entry of nationals from the six identified countries,
Section 2(c) of the Second Executive Order operates to delay, or ultimately to prevent,
the issuance of visas to nationals from those countries.
(4th Cir. 2014) (explaining that the Court may affirm on any grounds apparent from the
record).
4
Because only one plaintiff must have standing for the Court to consider a
particular claim, I do not address whether the other plaintiffs also have standing to
challenge the Second Executive Order under the INA. See Bostic v. Schaefer, 760 F.3d
352, 370–71 (4th Cir. 2014).
82
Before the President issued the Second Executive Order, John Doe #1 filed a visa
application on behalf of his Iranian national wife, and took substantial steps toward the
completion of the visa issuance process. However, his wife’s request for a visa is still
pending. It is self-evident from the language and operation of the Order that the 90-day
“pause” on entry, which the government may extend, is likely to delay the issuance of a
visa to John Doe #1’s wife and her entry into the United States, a likelihood that is not
remote or speculative. 5 Accordingly, I conclude that John Doe #1 has established the
existence of an injury-in-fact that is fairly traceable to the Second Executive Order, and
which is likely to be redressed by a favorable decision in this case.
II.
I turn to consider whether the plaintiffs are entitled to a preliminary injunction
based on the likelihood that the Second Executive Order violates the INA. This Court
evaluates a district court’s decision to grant a preliminary injunction based on an abuse-
of-discretion standard. Aggarao v. MOL Ship Mgmt. Co., 675 F.3d 355, 366 (4th Cir.
2012). Under this standard, we review the district court’s factual findings for clear error
and review its legal conclusions de novo. Dewhurst v. Century Aluminum Co., 649 F.3d
287, 290 (4th Cir. 2011).
5
For the same reasons, I reject the government’s contention that the plaintiffs’
claims are not ripe for review. The harm to the plaintiffs caused by separation from their
family members is imminent and concrete, and is not ameliorated by the hypothetical
possibility that the plaintiffs might receive a discretionary waiver under Section 3(c) of
the Second Executive Order at some point in the future.
83
A preliminary injunction is an “extraordinary remedy,” which may be awarded
only upon a “clear showing” that a plaintiff is entitled to such relief. The Real Truth
About Obama, Inc. v. FEC, 575 F.3d 342, 345–46 (4th Cir. 2009) (citing Winter v. Nat.
Res. Def. Council, 555 U.S. 7, 22 (2008)), vacated on other grounds, 559 U.S. 1089(2010). Preliminary relief affords a party before trial the type of relief ordinarily
available only after trial. Id. at 345. A preliminary injunction must be supported by four
elements: (1) a likelihood of success on the merits; (2) that the plaintiff likely will suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities
weighs in the plaintiff’s favor; and (4) that a preliminary injunction is in the public
interest. Id. at 346.
A.
I begin by considering whether the plaintiffs are likely to succeed on the merits of
a claim that the Second Executive Order fails to comply with the requirements of the
INA. In interpreting a statute, courts first must consider the plain meaning of the
statutory language. United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010). A statute’s
plain meaning derives from consideration of all the words employed, rather than from
reliance on isolated statutory phrases. Id. (citing United States v. Mitchell, 518 F.3d 230,
233–34 (4th Cir. 2008)).
i.
Initially, I would reject the plaintiffs’ contention that 8 U.S.C. § 1152(a)(1)(A),
which prohibits discrimination on the basis of nationality in the issuance of immigrant
visas, operates as a limitation on the President’s authority under 8 U.S.C. § 1182(f) to
84
“suspend the entry of all aliens or any class of aliens” if he finds that the entry of such
aliens “would be detrimental to the interests of the United States.” Section 1152(a)(1)(A)
provides that:
[N]o person shall receive any preference or priority or be discriminated
against in the issuance of an immigrant visa because of the person’s race,
sex, nationality, place of birth, or place of residence.
Thus, the plain language of Section 1152(a)(1)(A) addresses an alien’s ability to obtain
an immigrant visa. Section 1182(f), on the other hand, explicitly addresses an alien’s
ability to enter the United States, and makes no reference to the issuance of visas. See 8
U.S.C. § 1182(f). I am unpersuaded by the plaintiffs’ attempt to read into Section
1152(a)(1)(A) terms that do not appear in the statute’s plain language.
Sections 1152(a)(1)(A) and 1182(f) address two distinct actions in the context of
immigration, namely, the issuance of a visa and the denial of an alien’s ability to enter the
United States. Indeed, the fact that an alien possesses a visa does not guarantee that
person’s ability to enter the United States. For example, an alien who possesses a visa
may nonetheless be denied admission into the United States for a variety of reasons set
forth elsewhere in the INA. See 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be
construed to entitle any alien, to whom a visa or other documentation has been issued, to
be admitted [sic] the United States, if, upon arrival at a port of entry in the United States,
he is found to be inadmissible under this chapter, or any other provision of law.”). For
these reasons, I would reject the plaintiffs’ assertion that Section 1152(a)(1)(A) provides
a basis for affirming the preliminary injunction issued by the district court.
85
ii.
Nevertheless, I would conclude that the plaintiffs’ request for injunctive relief is
supported by the President’s failure to comply with Section 1182(f). In issuing his
proclamation under Section 2(c), the President relied exclusively on two provisions of the
INA. The President stated in material part:
I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA,
8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United
States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would
be detrimental to the interests of the United States. I therefore direct that
the entry into the United States of nationals of those six countries be
suspended for 90 days from the effective date of this order, subject to the
limitations, waivers, and exceptions set forth in sections 3 and 12 of this
order.
82 Fed. Reg. at 13,213.
Section 1185(a), however, does not confer any authority on a president. Instead,
that statute imposes certain requirements on persons traveling to and from the United
States, and renders unlawful their failure to comply with the requirements of the statute.
In contrast, Section 1182(f) addresses a president’s authority to impose restrictions
on the entry of aliens into the United States. Section 1182(f) states, in relevant part:
“Whenever the [p]resident finds that the entry of any aliens or of any class of aliens into
the United States would be detrimental to the interests of the United States,” the president
may “suspend the entry [into the United States] of all aliens or any class of aliens.”
Although this language provides broad discretion to a president to suspend the entry of
certain aliens and classes of aliens, that discretion is not unlimited.
86
The plain language of Section 1182(f) permits a president to act only if he “finds”
that entry of the aliens in question “would be detrimental to the interests of the United
States” (emphasis added). In my view, an unsupported conclusion will not satisfy this
“finding” requirement. Otherwise, a president could act in total disregard of other
material provisions of the INA, thereby effectively nullifying that complex body of law
enacted by Congress.
Here, the President’s “finding” in Section 2(c) is, in essence, a non sequitur
because the “finding” does not follow from the four corners of the Order’s text. In
particular, the text fails to articulate a basis for the President’s conclusion that entry by
any of the approximately 180 million 6 individuals subject to the ban “would be
detrimental to the interests of the United States.”
I reach this conclusion by examining the Order’s relevant text. In Section 1(a) of
the Order, the President declares that the policy of the United States is “to protect its
citizens from terrorist attacks, including those committed by foreign nationals,” and “to
improve the screening and vetting protocols and procedures” involved in issuing visas
and in the administration of the United States Refugee Admissions Program. 82 Fed.
6See Cent. Intelligence Agency, The World Factbook, Country Comparison:
Population, https://www.cia.gov/library/publications/the-world-factbook/rankorder/
2119rank.html (last visited May 19, 2017) (saved as ECF opinion attachment) (listing
populations of the six identified countries, in the total amount of more than 180 million).
Notably, the class of banned “nationals” potentially includes citizens of one of the six
identified countries whether or not those citizens have ever been physically present in one
of these countries. See Cent. Intelligence Agency, The World Factbook, Field Listing:
Citizenship, https://www.cia.gov/library/publications/the-world-factbook/fields/2263.html
(last visited May 19, 2017) (saved as ECF opinion attachment).
87
Reg. at 13,209. The Order explains that such screening and vetting procedures are
instrumental “in detecting foreign nationals who may commit, aid, or support acts of
terrorism and in preventing those individuals from entering the United States.” Id.The Order further states that the governments of Iran, Libya, Somalia, Sudan,
Syria, and Yemen are unlikely to be willing or able “to share or validate important
information about individuals seeking to travel to the United States,” because these
countries: (1) have porous borders facilitating “the illicit flow of weapons, migrants, and
foreign terrorist fighters”; (2) have been compromised by terrorist organizations; (3)
contain “active conflict zones”; or (4) are state sponsors of terrorism. Id. at 13,210–11.
In light of these conditions, the Second Executive Order proclaims that “the risk of
erroneously permitting entry of a national of one of these countries who intends to
commit terrorist acts or otherwise harm the national security of the United States is
unacceptably high.” Id. at 13,211.
Significantly, however, the Second Executive Order does not state that any
nationals of the six identified countries, by virtue of their nationality, intend to commit
terrorist acts in the United States or otherwise pose a detriment to the interests of the
United States. Nor does the Order articulate a relationship between the unstable
conditions in these countries and any supposed propensity of the nationals of those
countries to commit terrorist acts or otherwise to endanger the national security of the
United States. For example, although the Order states that several of the six countries
permit foreigners to establish terrorist safe havens within the countries’ borders, the
Order does not assert that any nationals of the six countries are likely to have joined
88
terrorist organizations operating within those countries, or that members of terrorist
organizations are likely to pose as nationals of these six countries in order to enter the
United States to “commit, aid, or support acts of terrorism.” See id. at 13,210–12 (noting,
among other things, that the Syrian government “has allowed or encouraged extremists to
pass through its territory to enter Iraq,” and that “ISIS continues to attract foreign fighters
to Syria and to use its base in Syria to plot or encourage attacks around the globe,
including in the United States”).
The text of the Second Executive Order therefore does not identify a basis for
concluding that entry of any member of the particular class of aliens, namely, the more
than 180 million nationals of the six identified countries, would be detrimental to the
interests of the United States. In the absence of any such rationale articulating the risks
posed by this class of foreign nationals, the President’s proclamation under Section 2(c)
does not comply with the “finding” requirement of the very statute he primarily invokes
to issue the ban imposed by Section 2(c).
The government asserted at oral argument in this case that the Second Executive
Order nevertheless can stand on the rationale that the President is “not sure” whether any
of the 180 million nationals from the six identified countries present a risk to the United
States. Oral Arg. 38:04–40:11. I disagree that this rationale is sufficient to comply with
the specific terms of Section 1182(f). Although this statute does not require the President
to find that the entry of any alien or class of aliens would present a danger to the United
States, the statutory text plainly requires more than vague uncertainty regarding whether
their entry might be detrimental to our nation’s interests. Indeed, given the scope of
89
Section 2(c), the President was required under Section 1182(f) to find that entry of any
members of the identified class would be detrimental to the interests of the United States.
Instead of articulating a basis why entry of these foreign nationals “would be
detrimental” to our national interests, the Order merely proposes a process under which
the executive branch will study the question. See 82 Fed. Reg. at 13,212–13. This
“study” proposal is an implicit acknowledgement that, presently, there is no affirmative
basis for concluding that entry of nationals from these six countries “would be
detrimental to the interests of the United States.” 8 U.S.C. § 1182(f) (emphasis added).
The government likewise fails in its attempt to justify the Second Executive Order
by relying on the prior exclusion of individuals from the Visa Waiver Program who had
certain connections to the six countries identified in the Order. See 82 Fed. Reg. at
13,209. Generally, the Visa Waiver Program allows nationals of specific countries to
travel to the United States without a visa for purposes of tourism or business for up to 90
days. See generally 8 U.S.C. § 1187. Based on modifications to the Program made by
Congress in 2015 and by the Secretary of Homeland Security in 2016, people with certain
connections to the six named countries no longer were permitted to participate in the
Program. 7 As a result, those newly ineligible aliens became subject to the standard
7
See Visa Waiver Program Improvement and Terrorist Travel Prevention Act of
2015, Pub. L. No. 114-113, § 203, 129 Stat. 2242, 2989–91; Department of Homeland
Security, U.S. Customs and Border Protection-009 Electronic System for Travel
Authorization System of Records, 81 Fed. Reg. 39,680, 39,682 (June 17, 2016).
90
procedures required for the issuance of visas. 8 Thus, exclusion from the Visa Waiver
Program merely reimposed for such aliens the customary requirements for obtaining a
visa, and did not impose any additional conditions reflecting a concern that their entry
“would be detrimental to the interests of the United States.” Further, the above-described
limitations of the Visa Waiver Program underscore the fact that, currently, the relevant
class of aliens does not enjoy “unrestricted entry” into the United States as incorrectly
stated in Section 2(c) of the Second Executive Order. See 82 Fed. Reg. at 13,213
(emphasis added).
Accordingly, I would hold that the text of Section 2(c) fails to meet the statutory
precondition for the lawful exercise of a president’s authority under Section 1182(f). I
thus conclude that the plaintiffs likely would succeed on the merits of this particular
statutory issue. See Winter, 555 U.S. at 20.
B.
I also would conclude with respect to Section 1182(f) that the plaintiffs would
satisfy the remaining Winter factors, because they are “likely to suffer irreparable harm in
the absence of preliminary relief,” the balance of the equities would resolve in their favor,
and an injunction would be in the public interest. Id. First, at a minimum, plaintiff John
Doe #1 has shown that absent an injunction, he likely will be subject to imminent and
8
See U.S. Customs & Border Prot., Visa Waiver Program Improvement and
Terrorist Travel Prevention Act Frequently Asked Questions, https://www.cbp.gov/travel/
international-visitors/visa-waiver-program/visa-waiver-program-improvement-
and-terrorist-travel-prevention-act-faq (last visited May 19, 2017) (saved as ECF opinion
attachment).
91
irreparable harm based on the prolonged separation from his wife that will result from
enforcement of the Second Executive Order. See Andreiu v. Ashcroft, 253 F.3d 477, 484
(9th Cir. 2001) (en banc). And, based on my conclusion that Section 2(c) is invalid on its
face, I would hold that an injunction should be issued on a nationwide basis.
Next, the balance of harms weighs in favor of granting a preliminary injunction.
See Winter, 555 U.S. at 24. The government’s interest in enforcing laws related to
national security as a general matter would be a strong factor in its favor. See Haig v.
Agee, 453 U.S. 280, 307 (1981). However, because the Second Executive Order does not
comply with the threshold requirement for a president’s lawful exercise of authority
under Section 1182(f), the government’s interest cannot outweigh the real harms to the
affected parties. See Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017)
(reviewing the First Executive Order, dismissing the government’s claim of irreparable
injury, and noting that “the Government has done little more than reiterate” its general
interest in combating terrorism).
Finally, the public interest also strongly favors a preliminary injunction, because
the public has an interest “in free flow of travel” and “in avoiding separation of families.”
Id. at 1169. And, most importantly, the public interest is served by ensuring that any
actions taken by the President under Section 1182(f) are lawful and do not violate the
only restraint on his authority contained in that statute.
92
III.
Accordingly, in addition to affirming the district court’s judgment with respect to
the plaintiffs’ Establishment Clause claim and the issuance of a nationwide injunction, I
would affirm the court’s judgment and award of injunctive relief on the separate basis
that the Second Executive Order is invalid on its face because it fails to comply with the
“finding” requirement of Section 1182(f).
93
WYNN, Circuit Judge, concurring:
Invidious discrimination that is shrouded in layers of legality is no less an insult to
our Constitution than naked invidious discrimination. We have matured from the lessons
learned by past experiences documented, for example, in Dred Scott and Korematsu. But
we again encounter the affront of invidious discrimination—this time layered under the
guise of a President’s claim of unfettered congressionally delegated authority to control
immigration and his proclamation that national security requires his exercise of that
authority to deny entry to a class of aliens defined solely by their nation of origin. Laid
bare, this Executive Order is no more than what the President promised before and after
his election: naked invidious discrimination against Muslims. Such discrimination
contravenes the authority Congress delegated to the President in the Immigration and
Nationality Act (the “Immigration Act”), 8 U.S.C. § 1101 et seq., and it is
unconstitutional under the Establishment Clause.
To that end, I concur fully in the majority opinion, including its analysis and
conclusion that Section 2(c) of the Executive Order, which suspends entry of nationals
from six predominantly Muslim countries, likely violates the Establishment Clause. In
particular, I agree that even when the President invokes national security as a justification
for a policy that encroaches on fundamental rights, our courts must not turn a blind eye to
statements by the President and his advisors bearing on the policy’s purpose and
constitutionality. Those statements characterized Section 2(c) as the realization of the
94
President’s repeated promise, made before and after he took office, to ban Muslims. 1
And I agree that “the Government’s asserted national security interest in enforcing
Section 2(c) appears to be a post hoc, secondary justification for an executive action
rooted in religious animus and intended to bar Muslims from this country.” 2 Ante at 75.
I write separately because I believe Plaintiffs’ claim that Section 2(c) exceeds the
President’s authority under the Immigration Act also is likely to succeed on the merits.
That statute authorizes the President to suspend the “entry of any aliens or of any class of
aliens” that he finds “would be detrimental to the interests of the United States.”
8 U.S.C. § 1182(f). Because the Executive Order here relies on national origin as a proxy
for discrimination based on religious animus, the Government’s argument that
Section 2(c)’s suspension on entry “falls squarely within the President’s broad authority”
1
The answer to the rhetorical question of whether the President will be able to
“free himself from the stigma” of his own self-inflicted statements, post at 189, lies in
determining whether the Executive Order complies with the rule of law. That requires us
to consider, in each instance, how the character, temporality, and nature of the President’s
repeated, public embrace of an invidiously discriminatory policy offensive to the
Constitution bear on a challenged policy.
2
It strains credulity to state that “the security of our nation is indisputably lessened
as a result of the injunction.” Post at 188 (emphasis added). Rather, the district court’s
order only enjoined implementation of Section 2(c) of the Executive Order—a provision
that the President maintained would increase national security. Indeed, two reports
released by the Department of Homeland Security in February 2017 and March 2017
found that citizenship is an “unlikely indicator” of whether an individual poses a terrorist
threat to the United States and that most of the individuals who have become U.S.-based
violent extremists have been radicalized after living in the United States for a period of
years. J.A. 233. The Government has not provided any information suggesting, much
less establishing, that the security risks facing our country are any different today than
they were when the President first sought to impose this temporary ban only seven days
into his presidency.
95
under Section 1182(f) essentially contends that Congress delegated to the President
virtually unfettered discretion to deny entry to any class of aliens, including to deny entry
solely on the basis of nationality and religion. Appellants’ Br. at 28. Not so.
To the contrary, the Immigration Act provides no indication that Congress
intended the “broad generalized” delegation of authority in Section 1182(f) to allow the
President “to trench . . . heavily on [fundamental] rights.” 3 And even if the plain
language of Section 1182(f) suggested Congress had given the President such unfettered
discretion to invidiously discriminate based on nationality and religion—which it does
not—a statute delegating to the President the authority to engage in such invidious
discrimination would raise grave constitutional concerns. Indeed, imposing burdens on
individuals solely on the basis of their race, national origin, or religion—“a classification
of persons undertaken for its own sake . . . inexplicable by anything but animus towards
the class it affects” 4—is “odious to a free people whose institutions are founded upon the
doctrine of equality.” 5 That is why—even when faced with a congressional delegation of
seemingly unbridled power to the President or his appointees—the Supreme Court
repeatedly “ha[s] read significant limitations into . . . immigration statutes in order to
avoid their constitutional invalidation” when the delegation provides no explicit
3
Kent v. Dulles, 357 U.S. 116, 129–30 (1958).
4
Romer v. Evans, 517 U.S. 620, 636, 632 (1996).
5
Hirabayashi v. United States, 320 U.S. 81, 100 (1943).
96
statement that Congress intended for the executive to use the delegated authority in a
manner in conflict with constitutional protections. 6
Accordingly, I conclude that Section 2(c)’s suspension on entry likely exceeds the
President’s authority under the Immigration Act to deny entry to classes of aliens.
I.
The majority opinion does not reach the merits of Plaintiffs’ claim that Section
2(c)’s suspension on entry violates the Immigration Act, and Section 1182(f), in
particular. Ante at 28–31. The district court, however, concluded that the Executive
Order likely violates the Immigration Act insofar as Section 2(c) effectively prohibits the
issuance of immigrant visas to aliens from the six countries based on their nationalities.
Int’l Refugee Assistance Project v. Trump, -- F. Supp. 3d --, 2017 WL 1018235, at *10
(D. Md. Mar. 16, 2017). And the Government has argued, both on appeal and before the
district court, that the suspension on entry falls within the President’s delegated power
under Section 1182(f). Appellants’ Br. at 28–30. Accordingly, the question of whether
Section 2(c) complies with Section 1182(f) is squarely before this Court. 7
6
Zadvydas v. Davis, 533 U.S. 678, 689 (2001).
7
The Government also asserts that Section 2(c)’s suspension on entry is
authorized by Section 1185(a) of the Immigration Act, which “authorizes the President to
prescribe ‘reasonable rules, regulations, and orders,’ as well as ‘limitations and
exceptions,’ governing the entry of aliens.” Appellants’ Brief at 29 (quoting 8 U.S.C.
§ 1185(a)). The Government does not argue that Sections 1182(f) and 1185(a) confer
meaningfully different powers on the President. Because Section 1182(f) is specifically
tailored to the suspension on entry, and because there is no reason to believe that the
(Continued)
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Section 1182(f) provides, in relevant part, that “[w]henever the President finds that
the entry of any aliens or of any class of aliens into the United States would be
detrimental to the interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may
deem to be appropriate.” 8 U.S.C. § 1182(f). Like the district court, the majority opinion
finds, and I agree, that Plaintiffs are likely to establish—based on statements by the
President and his advisors—that in promulgating Section 2(c), the President relied on one
suspect classification (national origin) as a proxy to purposely discriminate against
members of another suspect class (adherents to a particular religion) solely on the basis of
their membership in that class. Ante at 58. Thus, in considering Plaintiffs’ statutory
claim, we confront the following question: Did Congress, in enacting Section 1182(f),
analysis would be different under Section 1185(a), my analysis will proceed under
Section 1182(f).
Additionally, because the Executive Order cites the Immigration Act as the sole
statutory basis for the President’s authority to proclaim Section 2(c)’s suspension on
entry, I need not, and thus do not, take any position on the scope of the President’s
delegated power to deny entry to classes of aliens under other statutes. Likewise, because
the claim at issue relates only to Section 2(c)’s compliance with the Immigration Act, I
do not address whether, and in what circumstances, the President may deny entry to
classes of aliens under his inherent powers as commander-in-chief, even absent express
congressional authorization. See The Prize Cases, 67 U.S. 635 (1862).
Finally, I agree with Judge Keenan’s analysis and conclusion that, at a minimum,
John Doe #1 has standing to pursue Plaintiffs’ Immigration Act claim. Ante at 82–83.
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authorize the President to deny entry to a class of aliens on the basis of invidious
discrimination?
A.
Two related canons of statutory construction bear directly on this question. First,
under the “constitutional avoidance canon,” “when an Act of Congress raises ‘a serious
doubt’ as to its constitutionality, ‘[courts must] first ascertain whether a construction of
the statute is fairly possible by which the question may be avoided.’” Zadvydas v. Davis,
533 U.S. 678, 689 (2001) (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932)). “[I]f an
otherwise acceptable construction of a statute would raise serious constitutional
problems, and where an alternative interpretation of the statute is ‘fairly possible’ [courts]
are obligated to construe the statute to avoid such problems.” I.N.S. v. St. Cyr, 533 U.S.
289, 299–300 (2001) (citation omitted) (quoting Crowell, 285 U.S. at 62). This canon
“rest[s] on the reasonable presumption that Congress did not intend [an interpretation]
which raises serious constitutional doubts.” Clark v. Martinez, 543 U.S. 371, 381 (2005).
Put differently, “[t]he courts will . . . not lightly assume that Congress intended to
infringe constitutionally protected liberties or usurp power constitutionally forbidden it.”
Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.
568, 575 (1988).
The Supreme Court has applied the constitutional avoidance canon on several
occasions to narrow facially broad statutes relating to immigration and national security.
For example, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Supreme Court assessed
whether Section 1231(a)(6) of the Immigration Act—which provides that certain
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categories of aliens who have been ordered removed “may be detained beyond the
removal period”—authorized the detention of such categories of aliens indefinitely. 533
U.S. at 689. Notwithstanding that Section 1231(a)(6) placed no express limitation on the
duration of such detentions, the Supreme Court “read an implicit limitation into the
statute . . . limit[ing] an alien’s post-removal-period detention to a period reasonably
necessary to bring about that alien’s removal from the United States.” Id. Explaining
that “permitting indefinite detention of an alien would raise a serious constitutional
problem” and noting the absence of “any clear indication of congressional intent to grant
the Attorney General the power to hold indefinitely in confinement an alien ordered
removed,” the Supreme Court concluded that the constitutional avoidance canon required
adoption of the “implicit limitation.” Id. at 690, 697.
The Supreme Court also relied on the constitutional avoidance canon in I.N.S. v.
St. Cyr, 533 U.S. 289 (2001). In that case, the Supreme Court rejected the Government’s
arguments that two statutes amending the Immigration Act (1) deprived the judiciary of
jurisdiction to review habeas petitions filed by certain aliens subject to removal orders
and (2) retroactively deprived certain aliens who had pled guilty to criminal offenses—
which convictions rendered such aliens removable—the opportunity to pursue a
discretionary waiver of removal, notwithstanding that such aliens had been entitled to
pursue such a waiver at the time of their plea. Id. at 292–93, 297. In reaching these
conclusions, the Supreme Court acknowledged that Congress, at least in certain
circumstances, has the constitutional authority to repeal habeas jurisdiction and to make
legislation retroactive. Id. at 298–99, 315–16. Nonetheless, because (1) the
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Government’s proposed constructions would require the Supreme Court to hold that
Congress intended to exercise “the outer limits of [its] power” under the Constitution and
(2) the legislation included no “clear, unambiguous, and express statement of
congressional intent” indicating that Congress intended to exercise the “outer limits” of
its power, the Supreme Court rejected the Government’s positions. Id. at 299, 313–26.
The second applicable canon of construction—which is a corollary to the
constitutional avoidance canon—requires an even clearer indication of congressional
intent regarding the infringement on constitutional rights due to the absence of direct
action by Congress. That canon forbids courts from construing a “broad generalized”
delegation of authority by Congress to the executive as allowing the executive to exercise
that delegated authority in a matter that “trench[es]” upon fundamental rights, Kent v.
Dulles, 357 U.S. 116, 129 (1958), absent an “explicit” statutory statement providing the
executive with such authority, Greene v. McElroy, 360 U.S. 474, 507 (1959). Under this
canon, which I will refer to as the “delegation of authority canon,” courts must “construe
narrowly all delegated powers that curtail or dilute” fundamental rights. Kent, 357 U.S.
at 129; see also United States v. Robel, 389 U.S. 258, 275 (1967) (Brennan, J.,
concurring) (“The area of permissible indefiniteness [in a delegation] narrows, however,
when the regulation . . . potentially affects fundamental rights . . . . This is because the
numerous deficiencies connected with vague legislative directives . . . are far more
serious when liberty and the exercise of fundamental rights are at stake.”). The Supreme
Court requires that delegations that potentially authorize the executive to encroach on
fundamental rights “be made explicitly not only to assure that individuals are not
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deprived of cherished rights under procedures not actually authorized, but also because
explicit action, especially in areas of doubtful constitutionality, requires careful and
purposeful consideration by those responsible for enacting and implementing our laws.”
Greene, 360 U.S. at 507 (emphasis added) (citation omitted).
As with the constitutional avoidance canon, the Supreme Court has applied the
delegation of authority canon to statutes involving immigration and national security.
For example, in United States v. Witkovich, 353 U.S. 194 (1957), the Supreme Court
interpreted Section 242(d)(3) of the Immigration and Nationality Act of 1952, which
provided that the Attorney General could require any alien subject to a final order of
deportation that had been outstanding for more than six months “to give information
under oath as to his nationality, circumstances, habits, associations, and activities, and
such other information, whether or not related to the foregoing, as the Attorney General
may deem fit and proper.” 353 U.S. at 195 (quoting 8 U.S.C. § 1252(d)(3) (1952)). The
Government asserted that the plain language of the provision afforded the Attorney
General near unfettered discretion to demand information from such aliens. Id. at 198.
Although the Supreme Court acknowledged that “[t]he language of [Section] 242(d)(3), if
read in isolation and literally, appears to confer upon the Attorney General unbounded
authority to require whatever information he deems desirable of [such] aliens,” the
Supreme Court limited the Attorney General’s authority under Section 242(d)(3) to
“questions reasonably calculated to keep the Attorney General advised regarding the
continued availability for departure of aliens whose deportation is overdue.” Id. at 199,
202. In rendering this narrowing construction, the Supreme Court emphasized, first, that
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the broad reading proposed by the Government would call into question the statute’s
constitutional validity and, second, that the context and legislative history did not provide
unambiguous evidence that Congress intended to give the Attorney General the unbridled
authority the Government claimed. Id. at 199–200.
The Supreme Court also applied the delegation of authority canon in Kent v.
Dulles, 357 U.S. 116 (1958). There, the Supreme Court was asked to construe a statute
providing that “[t]he Secretary of State may grant and issue passports . . . under such
rules as the President shall designate and prescribe for and on behalf of the United
States.” 357 U.S. at 123 (internal quotation marks omitted) (quoting 22 U.S.C. § 211a
(1952)). Pursuant to that authority, the executive branch promulgated a regulation
authorizing the Secretary of State to demand an affidavit from any passport applicant
averring whether the applicant had ever been a Communist and barring issuance of
passports to Communists. Id. at 118 & n.2. Under that regulation, the Department of
State denied a passport to an applicant on grounds he refused to submit such an affidavit.
Id. at 118–19. Thereafter, the applicant sought a declaratory judgment that the regulation
was unconstitutional. Id. at 119. Despite the breadth of the plain language of the
delegating statute, the Supreme Court “hesitate[d] to impute to Congress . . . a purpose to
give [the Secretary of State] unbridled discretion to grant or withhold a passport from a
citizen for any substantive reason he may choose.” Id. at 128. Emphasizing (1) that the
authority to deny a passport necessarily involved the power to infringe on the
fundamental right to travel and (2) that the statutory delegation provision’s “broad
generalized” terms were devoid of any “explicit” indication Congress had intended to
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“give[] the Secretary authority to withhold passports to citizens because of their beliefs or
associations,” the Supreme Court refused “to find in this broad generalized power an
authority to trench so heavily on the rights of the citizen.” Id. at 129–30.
Taken together, the two canons reflect the basic principle that “when a particular
interpretation of a statute invokes the outer limits of Congress’ power, we expect a clear
indication that Congress intended that result.” St. Cyr, 533 U.S. at 299; see also United
States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 548 (1950) (Frankfurter, J.,
dissenting) (explaining that legislation potentially encroaching on fundamental rights
“should not be read in such a decimating spirit unless the letter of Congress is
inexorable”). Although closely related, the two canons are analytically distinct. In
particular, the constitutional avoidance canon involves direct actions by Congress that
potentially encroach upon fundamental rights. By contrast, the delegation of authority
canon governs delegations by Congress that potentially allow a delegatee to exercise
congressional power to encroach on fundamental rights. Because Congress does not
itself decide when or how its delegated authority will be exercised, any encroachment on
individual rights by Congress’s delegatee must be supported by an “explicit” statement
that Congress intended to permit such encroachment, Greene, 360 U.S. at 507—a more
stringent requirement than the “clear indication” necessary when Congress acts directly,
Zadvydas, 533 U.S. 696–97.
B.
The constitutional avoidance canon and the delegation of authority canon bear
directly on the scope of authority conferred on the President by Congress under Section
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1182(f) because, if construed broadly, Section 1182(f) could authorize the President to
infringe on fundamental constitutional rights. In particular, the Supreme Court has
“consistently repudiated ‘(d)istinctions between citizens solely because of their ancestry’
[or race] as being ‘odious to a free people whose institutions are founded upon the
doctrine of equality.’” Loving v. Virginia, 388 U.S. 1, 11 (1967) (quoting Hirabayashi v.
United States, 320 U.S. 81, 100 (1943)). “[T]he imposition of special disabilities” upon a
group of individuals based on “immutable characteristic[s] determined solely by the
accident of birth,” like race and national origin, runs contrary to fundamental
constitutional values enshrined in the Fifth and Fourteenth Amendments because it
“violate[s] ‘the basic concept of our system that legal burdens should bear some
relationship to individual responsibility.’” See Frontiero v. Richardson, 411 U.S. 677,
686 (1973) (plurality opinion) (quoting Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164,
175 (1972)). Accordingly, the Constitution forbids “[p]referring members of any one
group for no reason other than race or ethnic origin.” Regents of Univ. of Cal. v. Bakke,
438 U.S. 265, 307 (1978) (Powell, J., concurring in judgment). Or, more simply, the
Constitution prohibits “discrimination for its own sake.” Id.Although religion, unlike race and national origin, is not an immutable
characteristic, the Constitution treats classifications drawn on religious grounds as
equally offensive. The First Amendment “mandates governmental neutrality between
religion and religion, and between religion and nonreligion.” McCreary County v. Am.
Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005) (quoting Epperson v. Arkansas,
393 U.S. 97, 104 (1968)). To that end, the Constitution forbids both discriminating
105
against “those who embrace[] one religious faith rather than another” and “preferring
some religions over others—an invidious discrimination that would run afoul of the
[Constitution].” United States v. Seeger, 380 U.S. 163, 188 (1965) (Douglas, J.,
concurring).
If, as the Government’s argument implies, Congress delegated to the President the
authority to deny entry to an alien or group of aliens based on invidious discrimination
against a race, nationality, or religion, then Section 1182(f) would encroach on the core
constitutional values set forth in the First, Fifth, and Fourteenth Amendments: The
President could deny entry to aliens of a particular race solely based on the color of their
skin. The President could deny entry to citizens of a particular nation solely on the basis
of their place of birth. The President could deny entry to adherents of a particular
religion solely because of their subscription to that faith. Or, as this Court concludes the
President likely did here, the President could rely on one form of invidious
discrimination—discrimination based on national origin—to serve as pretext for
implementing another form of invidious discrimination—discrimination based on
religion.
The President justified his use of this layered invidious discrimination on grounds
that citizens of the six predominantly Muslim countries subject to the suspension on entry
pose a special risk to United States security. Revised Order § 1(e). In particular, the
Executive Order generally points to “the significant presence in each of these countries of
terrorist organizations, their members, and others exposed to those organizations.” Id.
§ 1(d). The order also cites, as the sole example of an act of terrorism by a native of one
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of the six countries, a native of Somalia who was brought to the United States as a
refugee at the age of two and was convicted, as an adult, of “attempting to use a weapon
of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-
lighting ceremony in Portland, Oregon.” Id. § 1(h).
Accordingly, the President relies on the acts of specific individuals and groups of
individuals (i.e., “terrorist organizations” and “their members”) within the six countries to
establish that all citizens of those countries pose a danger to the United States.
Dissenting from the Supreme Court’s sanctioning of the forced internment of Japanese
Americans during World War II, Justice Murphy explained the danger such rationales
pose to the core constitutional value of equality:
[T]o infer that examples of individual [misconduct] prove group
[misconduct] and justify discriminatory action against the entire group is to
deny that under our system of law individual guilt is the sole basis for
deprivation of rights. Moreover, this inference . . . has been used in support
of the abhorrent and despicable treatment of minority groups by the
dictatorial tyrannies which this nation is now pledged to destroy. To give
constitutional sanction to that inference . . . is to adopt one of the cruelest of
the rationales used by our enemies to destroy the dignity of the individual
and to encourage and open the door to discriminatory actions against other
minority groups in the passions of tomorrow.
Korematsu v. United States, 323 U.S. 214, 240 (1944) (Murphy, J., dissenting).
To be sure, the Supreme Court has recognized that, particularly in times of war, 8
Congress has broad authority to control immigration, including the power to authorize the
8
Congress’s constitutional power to control immigration—and authority to
delegate that control—fundamentally differs in a time of war. Korematsu v. United
States, 323 U.S. 214, 224 (1944) (Frankfurter, J., concurring) (“[T]he validity of action
under the war power must be judged wholly in the context of war. That action is not to
(Continued)
107
President to establish policies restricting the entry of aliens. See Landon v. Plasencia,
459 U.S. 21, 32 (1982) (stating that “the power to admit or exclude aliens is a sovereign
prerogative” entrusted almost exclusively to Congress). And “in the exercise of its broad
power over immigration and naturalization, ‘Congress regularly makes rules that would
be unacceptable if applied to citizens.’” Fiallo v. Bell, 430 U.S. 787, 792 (1977) (quoting
Mathews v. Diaz, 426 U.S. 67, 80 (1976)).
But the Supreme Court also has long, and repeatedly, held that Congress’s power
to create immigration laws remains “subject to important constitutional limitations.”
Zadvydas, 533 U.S. at 695; see also, e.g., I.N.S. v. Chadha, 462 U.S. 919, 940–41 (1983)
(“The plenary authority of Congress over aliens under Art. I, § 8, cl. 4 is not open to
question, but what is challenged here is whether Congress has chosen a constitutionally
permissible means of implementing that power.”); Chae Chan Ping v. United States, 130
U.S. 581, 604 (1889) (holding that Congress’s constitutionally devised powers to control
immigration, among other powers, are “restricted in their exercise only by the
be stigmatized as lawless because like action in times of peace would be lawless.”). The
Supreme Court’s broadest statements regarding the scope of the President’s delegated
powers over immigration—which are relied upon by the Government—are in cases in
which Congress expressly declared war and authorized the President to deny entry to
aliens as part of his prosecution of the conflict. See, e.g., Shaughnessy v. United States ex
rel. Mezei, 345 U.S. 206, 210 & n.7 (1953) (“Congress expressly authorized the President
to impose additional restrictions on aliens entering or leaving the United States during
periods of international tension and strife [including] the present emergency [the Korean
War].” (emphasis added)); Knauff, 338 U.S. at 543 (“[B]ecause the power of exclusion of
aliens is also inherent in the executive department of the sovereign, Congress may in
broad terms authorize the executive to exercise the power, e.g., as was done here, for the
best interests of the country during a time of national emergency [World War II].”
(emphasis added)).
108
constitution itself and considerations of public policy and justice which control, more or
less, the conduct of all civilized nations”). That is particularly true when the
discriminatory burdens of an immigration policy fall not just on aliens who have no claim
to constitutional rights, but also on citizens and other individuals entitled to constitutional
protections. Cf. Zadvydas, 533 U.S. at 693–94 (surveying the Supreme Court’s
immigration jurisprudence and finding that whether a plaintiff alien could lay claim to
constitutional protections “made all the difference”).
Here, aliens who are denied entry by virtue of the President’s exercise of his
authority under Section 1182(f) can claim few, if any, rights under the Constitution. But
when the President exercises that authority based solely on animus against a particular
race, nationality, or religion, there is a grave risk—indeed, likelihood—that the
constitutional harm will redound to citizens. For example, we hold today that the denial
of entry to a class of aliens solely based on their adherence to a particular religion likely
violates the Establishment Clause by sending “a state-sanctioned message that foreign-
born Muslims . . . are ‘outsiders, not full members of the political community.’” Ante at
38 (quoting Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 607 (4th Cir.
2012)). Likewise, were the President to deny entry to a class of aliens solely based on
their race, citizens of that race would be subjected to a constitutionally cognizable
“feeling of inferiority as to their status in the community.” Brown v. Bd. of Educ. of
Topeka, 347 U.S. 483, 494 (1954). And denying entry to classes of aliens based on
invidious discrimination has the potential to burden the fundamental right of citizens to
marry the partner of their choice based on nothing more than the partner’s race,
109
nationality, or religion. 9 Loving, 388 U.S. at 12 (“There can be no doubt that restricting
the freedom to marry solely because of racial classifications violates the central meaning
of the Equal Protection Clause.”). Put simply, when the Government engages in
invidious discrimination—be it against aliens or citizens—individuals whose rights the
Constitution protects face substantial harm.
Because construing Section 1182(f) as authorizing the President to engage in
invidious discrimination is plainly inconsistent with basic constitutional values and
because the violation of those values implicates the rights of citizens and lawful
permanent residents, not just aliens, the Government’s proposed construction “raise[s]
serious constitutional problems.” St. Cyr, 533 U.S. at 299–300.
C.
Having concluded that the Government’s broad reading of Section 1182(f) raises
serious constitutional concerns, we must reject that construction absent a “clear indication
of congressional intent” to allow the President to deny the entry of classes of aliens on
invidiously discriminatory bases. Zadvydas, 533 U.S. at 696–97. And because Section
1182(f) involves a delegation of congressional authority, not a direct action by Congress,
the indication of congressional intent to authorize the President, as delegatee, to encroach
on fundamental rights must be “explicit.” Greene, 360 U.S. at 507.
9
See Kerry v. Din, 135 S. Ct. 2128, 2142 (2015) (Breyer, J., dissenting) (stating
that a United States citizen and resident has a procedural due process interest in knowing
the Government’s grounds for denying a visa application by her husband, an Afghan
citizen with no claim to rights under the Constitution); id. at 2139 (Kennedy, J.,
concurring in judgment) (recognizing that a United States citizen may have “a protected
liberty interest in the visa application of her alien spouse”).
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To ascertain congressional intent, we look to the “plain meaning” of Section
1182(f). Ross v. R.A. North Dev., Inc. (In re Total Realty Mgmt.), 706 F.3d 245, 251 (4th
Cir. 2013). “To determine a statute’s plain meaning, we not only look to the language
itself but also the specific context in which that language is used, and the broader context
of the statute as a whole.” Id. (internal quotation marks omitted); see also U.S. Nat’l
Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (holding that in
ascertaining congressional intent, courts “must not be guided by a single sentence or
member of a sentence, but look to the provisions of the whole law, and to its object and
policy” (internal quotation marks omitted)). Here, neither the language of Section
1182(f), nor the context in which the language is used, nor the “object and policy”
underlying the Immigration Act “explicitly” state, much less “clear[ly] indicat[e],” that
Congress intended to authorize the President to deny entry to aliens based on invidious
discrimination.
1.
Beginning with the plain language, Section 1182(f) permits the President to
suspend the entry of “any aliens or of any class of aliens” only when he “finds that the
entry of [such aliens] would be detrimental to the interests of the United States.”
Accordingly, the plain language of Section 1182(f) does not explicitly authorize the
President to deny entry to a class of aliens solely defined by religion or by race, national
origin, or other immutable characteristic.
Nonetheless, in arguing that Section 1182(f) authorizes the Executive Order’s
suspension on entry, the Government focuses on that statute’s use of the (concededly
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broad) term “any class of aliens.” Appellants’ Br. at 28–29. But the Government’s
argument omits the crucial limitation Congress imposed by requiring that the President
may bar entry only upon a finding that entry of a class of aliens “would be detrimental to
the interests of the United States.” 8 U.S.C. § 1182(f). That restriction requires a
substantive connection between an alien’s membership in a particular class and the
likelihood that her entry would be detrimental to the interests of the United States.
Detrimental is defined as “harmful” or “damaging.” Webster’s Third New
International Dictionary (2002). Accordingly, Section 1182(f) authorizes the President to
deny entry to an alien if the President has reason to believe that, by virtue of the alien
being a member of a particular class, her entry is more likely to damage or harm the
interests of the United States. But the Constitution forbids imposing legal burdens on a
class of individuals solely based on race or national origin precisely because those
immutable characteristics bear no “relationship to individual responsibility.” Weber, 406
U.S. at 175. Because an alien’s race or national origin bears no “relationship to
individual responsibility,” those characteristics, by themselves, cannot render it more
likely that the alien’s entry will damage or harm the interests of the United States. Cf.
Romer, 517 U.S. at 632, 636 (holding that “a classification of persons undertaken for its
own sake” is “inexplicable by anything but animus towards the class it affects[, has no]
relationship to legitimate state interests,” and therefore violates the Fourteenth
Amendment). Likewise, the Constitution’s prohibition on discriminating against “those
who embrace[] one religious faith rather than another,” Seeger, 380 U.S. at 188 (Douglas,
J., concurring), means that an alien’s adherence to a particular religion alone also
112
provides no constitutionally cognizable basis for concluding that her entry is
disproportionately likely to harm or damage the interests of the United States.
Because race, national origin, and religion bear no factual or constitutionally
cognizable relationship to individual responsibility, courts have long interpreted
delegation provisions in the Immigration Act as barring executive officials from engaging
in invidious discrimination. For example, in United States ex rel. Kaloudis v.
Shaughnessy, 180 F.2d 489 (2d Cir. 1950) (Hand, J.), the Second Circuit recognized
“implied limitations” on Congress’s facially broad delegation of authority to the Attorney
General to suspend the deportation of any alien unlawfully present in the country. 180
F.2d at 490. Writing for the court, Judge Hand suggested that denying suspension of
deportation based on “irrelevant” reasons having no bearing on whether the “alien’s
continued residence [was] prejudicial to the public weal”—such as “becom[ing] too
addicted to attending baseball games, or ha[ving] bad table manners”—would exceed the
Attorney General’s congressionally delegated authority. Id. Factors like these, Judge
Hand explained, are “considerations that Congress could not have intended to make
relevant” to a determination of whether an alien could permissibly remain in the United
States. 10 Id. at 491 (emphasis added). Under the dictates of equality established by the
Constitution, an alien’s race, nationality, or religion is as irrelevant to the potential for his
10
Notably, Kaloudis found a basis for this clear outer limit on congressional
delegations of discretionary authority to the executive branch in the Immigration Act well
before Congress made explicit, in comprehensively amending the Immigration Act, that
discrimination on the basis of race, sex, ethnicity, and nationality has no place in
controlling immigration. See infra Part I.C.3.
113
entry to harm the interests of the United States as is the alien’s addiction to baseball or
his poor table manners.
Judge Friendly made this point clear in Wong Wing Hang v. I.N.S., 360 F.2d 715(2d Cir. 1966) (Friendly, J.). There, the Second Circuit again confronted a question
regarding the scope of the Attorney General’s authority—delegated by Congress—to
suspend an alien’s deportation. 360 F.2d at 716–17. Judge Friendly concluded that “the
denial of suspension to an eligible alien would be an abuse of discretion if it were made
without a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis such as an invidious discrimination against a particular race
or group.” Id. at 719 (emphasis added). Like addiction to baseball and poor table
manners, invidious discrimination is a “consideration[] that Congress could not have
intended to make relevant” to decisions regarding whether to allow an alien residence in
the United States, Judge Friendly held. Id. (internal quotation marks omitted) (quoting
Kaloudis, 180 F.2d at 491).
Just as Congress “could not have intended to make” considerations like “invidious
discrimination against a particular race or group” relevant to the Attorney General’s
discretionary decision to suspend an alien’s deportation from the United States, id.,Congress “could not have intended to make” invidious discrimination relevant to the
President’s discretionary determination regarding whether the entry of a particular alien
or class of aliens is “detrimental to the interests of the United States,” 8 U.S.C. § 1182(f).
That is because invidious discrimination has no connection to whether an alien’s
residence in the United States would be harmful or damaging to the nation or its interests.
114
Accordingly, not only does the plain language of Section 1182(f) fail to “explicitly”
authorize the President to use invidious discrimination in determining whether to deny
entry to a class of aliens, see Greene, 360 U.S. at 507, it does not even provide a “clear
indication” that Congress intended to delegate to the President the power to invidiously
discriminate, see Zadvydas, 533 U.S. at 696–97.
2.
Nor does the broader context of the Immigration Act, and Section 1182(f)’s place
within it, suggest that Congress intended Section 1182(f) to allow the President to
suspend the entry of a class of aliens based on invidious discrimination. In Section
1182(a), Congress enumerates numerous specific classes of aliens who are ineligible for
visas or admission. These categories encompass, for example, classes of individuals who
pose a variety of health, safety, and security risks, or are likely to become public charges.
See generally 8 U.S.C. § 1182(a). Many of the categories are quite specific, providing
particularized reasons why individual aliens may be deemed inadmissible. For example,
aliens who have been convicted of certain crimes, served as foreign government officials
and committed “particularly severe violations of religious freedom,” or participated in the
commission of torture are inadmissible. 8 U.S.C. § 1182(a)(2)(A), (G); id.§ 1182(a)(3)(E)(iii). Likewise, Section 1182(a) deems inadmissible aliens who have
been members of a totalitarian or Communist party, abused their status as student visa
holders, or “engaged in the recruitment or use of child soldiers.” Id. § 1182(a)(3)(D); id.
§ 1182(a)(6)(G); id. § 1182(a)(3)(G).
115
Importantly, most of the categories of inadmissible classes of aliens Congress sets
forth in Section 1182(a) relate to past conduct by an alien that renders the alien
particularly dangerous to the interests of the United States. E.g., § 1182(a)(2);
§ 1182(a)(3); § 1182(a)(6)(E); § 1182(a)(8)(B); § 1182(a)(9)(A). And, in accordance
with Congress’s decision to define categories of inadmissible aliens largely based on
individual conduct and responsibility rather than considerations over which aliens have
no control, none of the Section 1182(a) categories render a class of aliens inadmissible
solely on the basis of religion or of race, national origin, or other immutable
characteristic.
Notwithstanding Congress’s enumeration of the many general and specific
categories and classes of aliens that the executive branch may or must deem
inadmissible—and its failure to include any category defined by race, national origin, or
religion alone—the Government argues that, in enacting Section 1182(f), Congress
delegated to the President the authority to deny entry to any class of aliens for any reason
whatsoever, necessarily including for invidiously discriminatory reasons. Appellants’ Br.
at 28–29. But in construing a statutory provision, we must, if at all possible, avoid a
construction “that would render another provision [in the same statute] superfluous.”
Bilski v. Kappos, 561 U.S. 593, 607–08 (2010). And reading Section 1182(f) as
conferring on the President the unbridled authority to deny entry to any class of aliens
would impermissibly render superfluous the numerous specific classes of inadmissible
aliens that Congress has enumerated in Section 1182(a).
116
The District of Columbia Circuit reached an identical conclusion in Abourezk v.
Reagan, 785 F.2d 1043 (D.C. Cir. 1986) (Ginsburg, J.). There, the court considered 8
U.S.C. § 1182(a)(27) (“Subsection (27)”), which required the Attorney General to
exclude an alien if the Attorney General had reason to believe that the alien sought “to
enter the United States solely, principally, or incidentally to engage in activities which
would be prejudicial to the public interest or endanger the welfare, safety, or security of
the United States.” 785 F.2d at 1047 (internal quotation marks omitted) (quoting 8
U.S.C. § 1182(a)(27) (1982)). The question at issue was whether Subsection (27)
allowed the Attorney General to “exclude aliens whose entry might threaten [United
States’] foreign policy objectives simply because of their membership in Communist
organizations,” id. at 1057, when an adjacent provision in the statute, 8 U.S.C.
§ 1182(a)(28) (“Subsection (28)”), specifically dealt with exclusion of aliens who were or
previously had been members of any Communist party, Abourezk, 785 F.2d at 1048.
Then-Judge (now Justice) Ginsburg concluded that reading the Attorney General’s vague
and generalized delegated authority under Subsection (27) to allow exclusion on such a
basis would impermissibly render Subsection (28) “superfluous.” Id. at 1057.
“To preserve the significance of both sections, and the congressional intent that
guided their adoption,” the court held that the Attorney General could not rely on
Subsection (27) to exclude aliens who were or had been members of a Communist party
unless “the reason for the threat to the ‘public interest[,] . . . welfare, safety, or security’”
that the Attorney General put forward as a basis for barring entry under Subsection (27)
was “independent of the fact of membership in or affiliation with the proscribed
117
organization.” Id. at 1058 (alterations in original) (quoting 8 U.S.C. § 1182(a)(27)). Put
differently, the court prohibited the executive branch from using the general exclusionary
authority conferred by Congress in Subsection (27) to circumvent the more specific
provision in Subsection (28) dealing with exclusion of aliens affiliated with the
Communist party. Id. at 1057–58.
For the same reason, the President’s reliance on Section 1182(f) as a basis for
Section 2(c)’s suspension on entry also is inconsistent with Section 1182(a)(3)(B), which
includes “specific criteria for determining terrorism-related inadmissibility.” See Kerry v.
Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring). Recall that the Executive
Order justified the President’s suspension on entry, in part, on grounds that certain
nationals of the six countries were members of terrorist organizations or previously had
engaged in acts of terrorism and, therefore, that admitting aliens from those countries
would be detrimental to the interests of the United States. See supra Part I.B.
Section 1182(a)(3)(B) renders inadmissible aliens who have been, are, or may in
the future be connected to or engaged in terrorist activity, including aliens who have
“engaged in a terrorist activity”; those whom government officials know or have
reasonable cause to believe are “likely to engage after entry in any terrorist activity”;
those who have “incited terrorist activity”; and those who “endorse[] or espouse[]
terrorist activity or persuade[] others to” do so or who “support a terrorist organization.”
8 U.S.C. § 1182(a)(3)(B)(i). That subsection also provides detailed definitions of
“terrorist activity,” “terrorist organization,” the act of “engag[ing] in terrorist activity,”
and “representative” of a terrorist organization. Id. § 1182(a)(3)(B)(iii)–(vi).
118
Congress established these “specific criteria for determining terrorism-related
inadmissibility,” Din, 135 S. Ct. at 2140, against the backdrop of the executive branch’s
exclusion of aliens based on “mere membership in an organization, some members of
which have engaged in terrorist activity” even when there was no indication that the alien
seeking admission was himself engaged in such activity. H.R. Rep. No. 100-882, at 19
(1988). By enacting specific provisions regarding the inadmissibility of aliens who are or
have been engaged in terrorist activity, Congress sought to make clear that “the
definitions of ‘terrorist activity’ and ‘engages in terrorist activity’ must be applied on a
case by case basis” and that “simple membership in any organization . . . is not per se an
absolute bar to admission to the United States”—whether under the President’s general
authority to bar entry or otherwise. Id. at 30.
If Congress has deemed it unlawful for the President to absolutely bar the entry of
aliens who are members of an organization that includes some members who engage in
terrorism, it defies logic that Congress delegated to the President in Section 1182(f) the
far broader power to absolutely bar the entry of aliens who happen to have been born in a
particular country, within the borders of which some individuals have engaged in
terrorism. Indeed, this is precisely why courts apply the canon of statutory construction
“that the specific governs the general.” RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 132 S. Ct. 2065, 2071 (2012) (internal quotation marks omitted). When, as here, a
statute includes “a general authorization [Section 1182(f)] and a more limited, specific
authorization [Section 1182(a)(3)(B)] . . . side-by-side” that canon requires that “[t]he
terms of the specific authorization must be complied with” in order to avoid “the
119
superfluity of a specific provision that is swallowed by the general one.” Id.Accordingly, Section 1182(a)(3)(B), not Section 1182(f), is the congressionally
authorized mechanism for the President to deny entry to aliens whom he concludes are
detrimental to the United States because they pose a threat of engaging in terrorist
activities. See Abourezk, 785 F.2d at 1049 n.2 (“The President’s sweeping proclamation
power [under Section 1182(f)] thus provides a safeguard against the danger posed by any
particular case or class of cases that is not covered by one of the categories in section
1182(a).” (emphasis added)).
Interpreting Section 1182(f) to allow the President to suspend the entry of aliens
based solely on their race, nationality, or other immutable characteristics also would
conflict with 8 U.S.C. § 1152(a), which provides that “no person shall receive any
preference or priority or be discriminated against in the issuance of an immigrant visa
because of the person’s race, sex, nationality, place of birth, or place of residence.”
Congress passed Section 1152(a) in 1965, more than a decade after it enacted Section
1182(f), as part of a comprehensive revision to the Immigration Act intended to eliminate
nationality-based discrimination in the immigration system. See infra Part I.C.3.
Section 1152(a) deals with issuance of immigrant visas, rather than entry, which is
governed by Section 1182. Nonetheless, reading Section 1182(f) as authorizing the
President to deny entry based on invidious discrimination would place Section 1182(f) in
conflict with Section 1152(a), which prohibits invidious discrimination in the issuance of
visas. In particular, the Immigration Act authorizes the executive branch to refuse to
issue a visa to any alien who “is ineligible to receive a visa or such other documentation
120
under section 1182.” 8 U.S.C. § 1201(g). As the Government concedes, the President’s
exercise of his authority under Section 1182(f) to deny entry to aliens from the six
predominantly Muslim countries, were it lawful, also would bar, by virtue of Section
1201(g), such aliens from obtaining visas, including immigrant visas. This would be the
very result Congress sought to avoid in ending nationality-based discrimination in the
issuance of immigrant visas through its passage of Section 1152(a).
Accordingly, Section 1182(f)’s function within the Immigration Act does not
clearly indicate that Congress intended to delegate to the President the authority to
suspend the entry of aliens based on invidious discrimination. On the contrary,
construing Section 1182(f) as broadly authorizing the President to engage in invidious
discrimination in denying entry would render superfluous the numerous categories of
inadmissible aliens Congress took pains to identify in Section 1182(a), including the
provisions directly addressing aliens who pose a risk of engaging in terrorist activities,
and conflict with Section 1152(a)’s prohibition on discrimination based on race,
nationality, and other immutable characteristics.
3.
Reading Section 1182(f) as allowing the President to deny entry to classes of
aliens based on invidious discrimination also would contradict the “object and policy”
underlying the Immigration Act. See U.S. Nat’l Bank of Or., 508 U.S. at 455. Although
the specific language of Section 1182(f) dates to 1952, Congress “comprehensive[ly]
revis[ed]” the Immigration Act in 1965 (the “1965 Revisions”). S. 1932 & Other
Legislation Relating to the Immigration Quota System Before the S. Subcomm. on
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Immigration & Naturalization Vol. 2, 88th Cong. 78 (1964) (statement of Sen. Fong).
Those revisions were drafted concurrently with the Civil Rights Act of 1964 and the
Voting Rights Act of 1965 and enacted at the height of the civil rights movement with the
express purpose of “eliminat[ing] the national origins system as the basis for the selection
of immigrants to the United States.” H.R. Rep. No. 89-745, at 8 (1965); see also S. 1932
& Other Legislation Relating to the Immigration Quota System Before the S. Subcomm.
on Immigration & Naturalization Vol. 3, 88th Cong. 107 (1964) (statement of Sen. Hart)
(“A law that says that one man is somewhat less than another simply because of accident
of his place of birth is not tolerable in the year 1964. A formula based on equality and
fair play must be enacted. Selection should be based primarily on questions of our own
national interest.”).
Prior to the 1965 Revisions, the Immigration Act employed nationality-based
quotas, limiting the number of immigrants admissible to the nation each year based on
nation of birth. President Kennedy called on Congress to repeal the nationality-based
quota system, condemning it as a system “without basis in either logic or reason” that
“neither satisfie[d] a national need nor accomplishe[d] an international purpose” but
instead “discriminate[d] among applicants for admission into the United States on the
basis of accident of birth.” Letter to the President of the Senate and to the Speaker of the
House on Revision of the Immigration Laws, 1963 PUB. PAPERS 594, 595 (July 23,
1963). After President Kennedy’s assassination, President Johnson renewed Kennedy’s
request for “the elimination of the national origins quota system,” which he described as
“incompatible with our basic American tradition” and “our fundamental belief that a man
122
is to be judged—and judged exclusively—on his worth as a human being.” Special
Message to the Congress on Immigration, 1965 PUB. PAPERS 37, 37, 39 (Jan. 13, 1965).
The 1965 Revisions answered President Kennedy’s and President Johnson’s calls.
Congress explained that the 1965 Revisions abolished nationality-based discrimination in
the immigration system in order to “firmly express in our immigration policy the
dedication which our nation has to the principles of equality, of human dignity, and of the
individual worth of each man and woman.” S. 1932 & Other Legislation Relating to the
Immigration Quota System Before the S. Subcomm. on Immigration & Naturalization
Vol. 1, 88th Cong. 4 (1964) (statement of Sen. Kennedy). Time and again Congress
connected the need to eliminate the nationality-based quota system to American “tenets
of equality irrespective of race, creed, or color” and emphasized that abolishing
nationality-based quotas “demonstrat[ed] to the whole world that we practice what we
preach, and that all men are equal under law.” S. 1932 & Other Legislation Relating to
the Immigration Quota System Before the S. Subcomm. on Immigration & Naturalization
Vol. 2, 88th Cong. 100–01 (1964) (statement of Sen. Fong); see also id. Vol. 1, at 9
(statement of Sen. Hart) (explaining that the 1965 Revisions abolished the “irrational . . .
national origins concept, which said in clear and echoing words that the people of some
nations [we]re more welcome to America than others” based on “[a]rbitrary ethnic and
racial barriers”).
Upon signing the bill into law at Liberty Island, New York, President Johnson
lauded the end of the nationality-based discrimination that previously defined the
American system of immigration, describing the 1965 Revisions as abolishing “the harsh
123
injustice of the national origins quota system,” which “violated the basic principle of
American democracy—the principle that values and rewards each man on the basis of his
merit as a man.” 1965 PUB. PAPERS 1037, 1038–39 (Oct. 3, 1965). As a result of the
1965 Revisions, immigrants would be permitted to come to America “because of what
they are, and not because of the land from which they sprung.” Id. at 1039 (emphasis
added).
To effect its purpose of eliminating discrimination in the immigration system,
Congress stripped the Immigration Act of all provisions expressly authorizing national
origin-based invidious discrimination and added Section 1152(a)(1)’s prohibition on
discrimination in the issuance of visas based on nationality and other immutable
characteristics, such as race. As evidenced by Section 1152(a)(1), disregarding national
origin in selecting which immigrants to admit to the United States remains a core
principle of United States immigration policy. Far from evidencing “any clear
indication” that Congress intended the President to have the authority to exercise his
Section 1182(f) powers based on invidious discrimination, the “object and policy” of the
Immigration Act suggest that Congress did not intend to grant the President unbridled
authority to engage in invidious discrimination when deciding whether and to what extent
to suspend alien entry. 11
11
The Government points to a number of orders promulgated by Presidents
pursuant to their authority under Section 1182(f) as evidence that that statutory provision
authorizes the President to engage in national origin-based discrimination. But the
previous orders the Government cites materially differ from Section 2(c), in that they did
not suspend the entry of classes of aliens based on national origin alone, let alone use
(Continued)
124
*****
In sum, the language of Section 1182(f), related provisions in the Immigration
Act, and the “object and policy” of the statute do not “explicitly” state, much less provide
national origin as a proxy to suspend the entry of a class of aliens based on another
invidiously discriminatory basis, such as religion. See Proclamation 8693 (July 24, 2011)
(suspending the entry of aliens subject to travel bans issued by the United Nations
Security Council’s resolution barring member nations from permitting the entry of
individuals who threaten peace in various nations); Proclamation 8342 (Jan. 22, 2009)
(suspending the entry of senior government officials “who have impeded their
governments’ antitrafficking efforts, have failed to implement their governments’
antitrafficking laws and policies, or who otherwise bear responsibility for their
governments’ failures to take steps recognized internationally as appropriate to combat
trafficking in persons”); Proclamation 6958 (Nov. 22, 1996) (suspending the entry of
“members of the Government of Sudan, officials of that Government, and members of
the Sudanese armed forces” based on the Sudanese government’s harboring of
individuals who attempted to assassinate the Egyptian President in Ethiopia, in violation
of Ethiopian sovereignty); Executive Order No. 12,807 (May 24, 1992) (suspending the
entry of “undocumented aliens [entering the United States] by sea” during the mass
exodus of Haitian nationals fleeing a military coup, often in dangerous and overcrowded
sea vessels); Proclamation 5887 (Oct. 22, 1988) (suspending the entry of “officers and
employees” of the Nicaraguan government as nonimmigrants to the United States based
on the Nicaraguan government’s “unjustified expulsion” of American diplomats and
“long-standing . . . suppression of free expression and press and support of subversive
activities throughout Central America”); Proclamation 5829 (June 10, 1988) (suspending
the entry of “Panamanian nationals . . . who formulate or implement the policies of
Manuel Antonio Noriega and Manuel Solis Palma” due to those officials’ act of
“preventing the legitimate government . . . from restoring order and democracy” to
Panama).
Of the executive orders cited by the government, President Reagan’s suspension
on the entry of Cuban nationals as immigrants comes closest to a nationality-based
suspension on alien entry. Proclamation 5517 (Aug. 22, 1986). But that executive action
was not challenged as a violation of either Section 1182(f) or Section 1152(a)(1), and
therefore the judiciary never had the opportunity to address whether the order complied
with those provisions or the Constitution. Nor does a single, unchallenged executive
action “demonstrate the kind of consistent administrative interpretation necessary to give
rise to a presumption of congressional acquiescence.” Abourezk, 785 F.2d at 1056.
125
a “clear indication,” that Congress intended to delegate to the President wholly
unconstrained authority to deny entry to any class of aliens, including based on
invidiously discriminatory reasons. See Zadvydas, 533 U.S. at 697. Accordingly,
Section 2(c)—which this Court finds was likely borne of the President’s animus against
Muslims and his intent to rely on national origin as a proxy to give effect to that
animus—exceeds the authority Congress conferred on the President in Section 1182(f).
As Judge Friendly put it, “Congress could not have intended to make relevant” to the
President’s exercise of his delegated authority to suspend the entry of aliens “invidious
discrimination against a particular race or group.” Wong Wing Hang, 360 F.2d at 719(internal quotation marks omitted).
II.
Invidious “discrimination in any form and in any degree has no justifiable part
whatever in our democratic way of life. It is unattractive in any setting but it is utterly
revolting among a free people who have embraced the principles set forth in the
Constitution of the United States.” Korematsu, 323 U.S. at 242 (Murphy, J., dissenting).
Yet the Government asks this Court to hold that, in enacting Section 1182(f), Congress
intended to delegate to the President the power to deny entry to a class of aliens based on
nothing more than such aliens’ race, national origin, or religion.
One might argue, as President Trump seemed to suggest during the campaign, ante
at 18–21, that as a matter of statistical fact, Muslims, and therefore nationals of the six
predominantly Muslim countries covered by the Executive Order, disproportionately
126
engage in acts of terrorism, giving rise to a factual inference that admitting such
individuals would be detrimental to the interests of the United States. Indeed, viewing
the Executive Order in its most favorable light, that is the precisely the rationale
underlying Section 2(c). Setting aside the question of whether that factual finding is true,
or even reasonable—which is, at best, highly debatable given the 180 million people in
the countries subject to the suspension on entry and the 1.6 million Muslims worldwide—
that is precisely the inference that the Framers of the Constitution and the Reconstruction
Amendments concluded was impermissible as a matter of constitutional law. 12
Korematsu, 323 U.S. at 240 (Murphy, J., dissenting). In particular, classifying
individuals based solely on their race, nationality, or religion—and then relying on those
classifications to discriminate against certain races, nationalities, or religions—
necessarily results in placing special burdens on individuals who lack any moral
responsibility, a result the Framers deemed antithetical to core democratic principles and
destabilizing to our Republic. Id.
Even though the Constitution affords greater latitude to the political branches to
draw otherwise impermissible distinctions among classes of aliens, the harm to core
12
Our country adheres to the rule of law in preserving core constitutional
protections. Thus, when the President can identify no change in circumstances justifying
an invidious encroachment on constitutional rights, a simple claim of potential harm to
national security does not provide the President with unfettered authority to override core
constitutional protections. See New York Times Co. v. United States, 403 U.S. 713, 714
(1971) (holding that a claim of potential harm to national security does not provide the
executive branch with unconstrained authority to override the freedom of the press).
Indeed, even the invocation of Congressional war powers to protect national defense do
“not remove constitutional limitations safeguarding essential liberties.” Robel, 389 U.S.
at 264–67 (internal quotation marks omitted).
127
constitutional values associated with governmental sanctioning of invidious
discrimination—and the harm to citizens stemming from the abridgement of those
values—demands evidence of “careful and purposeful consideration by those responsible
for enacting and implementing our laws” before such discrimination should be
sanctioned by the judiciary. Greene, 360 U.S. at 507 (emphasis added). Because
Congress did not provide any indication—let alone the requisite “explicit” statement—
that it intended to delegate to the President the authority to violate fundamental
constitutional values of equality in exercising his authority to deny entry to classes of
aliens, I reject the Government’s proposed construction of Section 1182(f).
In emphasizing the larger constitutional problems raised by construing Section
1182(f) as a delegation of authority to engage in invidious discrimination, we must not
forget that the Constitution embraces equality in order to forestall highly personal harms.
Plaintiff John Doe #1, a lawful permanent resident, seeks to be reunited with his wife, an
Iranian national, whom Section 2(c) bars from entering the United States. As Justice
Jackson explained when confronted with another broad delegation of congressional
authority over immigration, “Congress will have to use more explicit language than any
yet cited before I will agree that it has authorized [the President] to break up the family of
[a lawful permanent resident] or force him to keep his wife by becoming an exile.”
Knauff, 338 U.S. at 551–52 (Jackson, J., dissenting).
128
THACKER, Circuit Judge, concurring:
I concur in the majority’s opinion but write separately for three reasons: (1) I
would not consider remarks made by candidate Trump before he took his presidential
oath of office; (2) I would nonetheless find that Appellees have demonstrated a likelihood
of success on the merits of their argument that Section 2(c) of the Second Executive
Order (“EO-2”) violates the Establishment Clause, based solely on remarks made or
sentiments expressed after January 20, 2017; and (3) I would conclude Appellees have
demonstrated a likelihood of success on the merits of their argument that Section 2(c), as
it applies to immigrant visas, violates 8 U.S.C. § 1152(a)(1)(A) of the Immigration and
Nationality Act (“INA”).
I.
I agree with the majority’s conclusion that Appellees have standing to challenge
the constitutionality of § 2(c) of EO-2 and that EO-2 likely violates the Establishment
Clause. However, in my view, we need not -- and should not -- reach this conclusion by
relying on statements made by the President and his associates before inauguration.
While on the campaign trail, a non-incumbent presidential candidate has not yet
taken the oath to “preserve, protect and defend the Constitution,” U.S. Const. art. II, § 1,
and may speak to a host of promises merely to curry favor with the electorate. Once a
candidate becomes President, however, the Constitution vests that individual with the
awesome power of the executive office while simultaneously imposing constraints on
that power. Thus, in undertaking the Establishment Clause analysis, I believe we should
129
focus our attention on conduct occurring on President Trump’s inauguration date, January
20, 2017, and thereafter. Indeed, for the reasons below, looking to pre-inauguration
conduct is neither advisable nor necessary.
A.
In confining my analysis to post-inauguration statements and actions, I do not
draw on a blank slate. To begin, “the Establishment Clause protects religious expression
from governmental interference.” Mellen v. Bunting, 327 F.3d 355, 376 (4th Cir. 2003)
(emphasis supplied). To this end, Establishment Clause jurisprudence has focused on
government action rather than “a[] judicial psychoanalysis” of individuals. McCreary
Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005). We have neither
the right nor the ability to peer inside an official’s “heart of hearts”; indeed, we will “not
look to the veiled psyche of government officers” -- much less that of candidates for
public office -- to divine the purpose of a law. Id. at 862–63.
The Government relies on the doctrines of executive privilege and presidential
immunity to contend that EO-2 is essentially unreviewable, arguing that courts “should
not second-guess the President’s stated purpose by looking beyond the policy’s text and
operation,” and that we should instead apply a “presumption of regularity” to his actions.
Appellants’ Br. 45 (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14–15
(1926)). While I do not agree with this proposition for the reasons ably set forth by Chief
Judge Gregory, I do believe the Supreme Court’s decisions in the executive privilege and
immunity context support confining our review to statements by the President and his
administration made after the inauguration, once the President began operating pursuant
130
to Article II. Those decisions explain that the judiciary’s ability to probe official,
presidential conduct is related to his discharge of official power. See Clinton v. Jones,
520 U.S. 681, 703 (1997) (“[W]e have long held that when the President takes official
action, the Court has the authority to determine whether he has acted within the law.”
(emphasis supplied)); cf. Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 381 (2004)
(“It is well established that ‘a President’s communications and activities encompass a
vastly wider range of sensitive material than would be true of any ordinary individual.’”
(quoting United States v. Nixon, 418 U.S. 683, 715 (1974)) (emphasis supplied)). Indeed,
the executive privilege -- and, by that token, the separation of powers -- applies where the
President operates within the executive’s core constitutional powers. See Nixon, 418 U.S.
at 708–09. It follows that a president’s conduct after he takes office, but not before,
carries the imprimatur of official “government” action, and can only then be considered
“government interference” under the Establishment Clause. Mellen, 327 F.3d at 376.
B.
For more practical reasons, we should also hesitate to attach constitutional
significance to words a candidate utters on the campaign trail. Campaign speeches are
inevitably scattered with bold promises, but once the dust settles after an election -- when
faced with the reality of the office and with benefit of wise counsel -- a newly inducted
public official may act with a different philosophy. Presidents throughout history have
131
dialed back or even reversed campaign promises. 1 To be sure, the President’s statements
regarding Islam before assuming office reveal religious animus that is deeply troubling.
See, e.g., J.A. 346 (“Donald J. Trump Statement on Preventing Muslim Immigration,”
dated December 7, 2015). 2 Nonetheless, I do not adhere to the view that we should
magnify our analytical lens simply because doing so would support our conclusion,
particularly when we need not do so.
II.
Even without focusing on any campaign rhetoric, the record in this case amply
demonstrates the primary purpose of EO-2 was to ban Muslims from entering the United
States in violation of the Establishment Clause. I would thus base our Establishment
Clause analysis on the morphing of the First Executive Order (“EO-1”) into EO-2, the
statements of presidential representatives and advisors, the lack of evidence supporting a
1
Indeed, many might argue that this President has repeatedly and regularly dialed
back or reversed course on his campaign promises. See, e.g., Priya Krishnakumar et al.,
Tracking President Trump’s Campaign Promises, L.A. Times (Apr. 26, 2017),
http://www.latimes.com/projects/la-na-pol-trump-100-days-promises/(reporting President
Trump has “scaled back” or “abandoned” 9 out of 31 campaign promises) (saved as ECF
opinion attachment).
2
Given that they were made on the campaign trail, I do not consider as part of my
analysis the President’s campaign website’s archived statements about the plan to ban all
Muslims from entering the United States. However, I must note it is peculiar that those
statements were removed shortly before we began hearing arguments in this case. See
Dan Merica, Trump campaign removes controversial Muslim ban language from website,
CNN (May 8, 2017, 3:37 PM), http://www.cnn.com/2017/05/08/politics/trump-muslim-
ban-campaign-website/ (saved as ECF opinion attachment).
132
purported national security purpose, and the text of and logical inconsistencies within
EO-2.
The Government argues that we should simply defer to the executive and presume
that the President’s actions are lawful so long as he utters the magic words “national
security.” But our system of checks and balances established by the Framers makes clear
that such unquestioning deference is not the way our democracy is to operate. Although
the executive branch may have authority over national security affairs, see Munaf v.
Geren, 553 U.S. 674, 689 (2008) (citing Dep’t of Navy v. Egan, 484 U.S. 518, 530
(1988)), it may only exercise that authority within the confines of the law, see
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 645–46, 654–55 (1952)
(Jackson, J., concurring); and, of equal importance, it has always been the duty of the
judiciary to declare “what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177
(1803).
A.
The President issued EO-1 on January 27, 2017. See Exec. Order 13,769,
Protecting the Nation From Foreign Terrorist Entry Into the United States, 82 Fed. Reg.
8977 (Jan. 27, 2017). EO-1 banned citizens of seven majority Muslim nations -- Libya,
Iran, Iraq, Somalia, Syria, Sudan, and Yemen -- from entering the United States. The ban
applied to over 180 million Muslims, or just over 10% of the world Muslim population,
and was executed without input from relevant cabinet officials. Indeed, the President
actively shielded certain officials from learning the contents of EO-1: per then-acting
Attorney General Sally Yates, the administration advised “the Office of Legal Counsel
133
. . . not to tell the attorney general about [EO-1] until after it was over.” Full Transcript:
Sally Yates and James Clapper testify on Russian election interference, Wash. Post (May
8, 2017), https://www.washingtonpost.com/news/post-politics/wp/2017/05/08/full-
transcript-sally-yates-and-james-clapper-testify-on-russian-election-interference (saved as
ECF opinion attachment).
As Rudy Giuliani, an advisor to the President, explained on January 28, 2017, EO-
1 did all this with the purpose of discriminating against Muslims. Giuliani was quite
clear that the President wanted to enact a “Muslim ban” and had assembled a commission
to study how to create a “Muslim ban” legally. J.A. 508. Per Giuliani, EO-1 was the
President’s attempt at a legal “Muslim ban.” Id. 3
To further this goal, EO-1 suspended the entry of refugees for 120 days but
directed the Secretary of State “to prioritize refugee claims made by individuals on the
basis of religious-based persecution, provided that the religion of the individual is a
minority religion in the individual’s country of nationality.” EO-1, § 5(b). The President
explained that this exception was designed to give Christians priority in entering the
United States as refugees. He said that in Syria,
3
Giuliani is purportedly a member, and claims to be chairman, of an expert legal
commission assembled to study how to create a lawful way to ban Muslims from entering
the country and an acknowledged advisor to the President. See J.A. 508–09. Courts
routinely analyze statements and reports from presidential commissions such as the one
of which Giuliani is a member. See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 533 (2001)
(citing and quoting President’s Commission on Law Enforcement and Administration of
Justice, The Challenge of Crime in a Free Society 202 (1967) to demonstrate importance
of privacy in communications); Osborne v. Ohio, 495 U.S. 103, 111 (1990) (citing
Attorney General’s Commission on Pornography to establish state’s interest in punishing
child pornography possession).
134
If you were a Muslim you could come in, but if you were a Christian, it was
almost impossible and the reason that was so unfair, everybody was
persecuted in all fairness, but they were chopping off the heads of
everybody but more so the Christians. And I thought it was very, very
unfair. So we are going to help them.
J.A. 462 (emphases supplied). 4 The statements of the President, his advisor, and the text
of EO-1 made crystal clear a primary purpose of disfavoring Islam and promoting
Christianity.
After the Ninth Circuit upheld the stay of EO-1, the President set about to issue a
new executive order. But significantly, in revising the order, the executive branch did not
attempt to walk away from its previous discriminatory order. Instead, it simply attempted
to effectuate the same discrimination through a slightly different vehicle -- the proverbial
wolf in sheep’s clothing. Indeed, Press Secretary Sean Spicer confirmed that “[t]he
principles of the executive order remain the same,” J.A. 379, 5 and the President’s Senior
Policy Advisor, Stephen Miller, described the changes in the new order as “mostly minor
technical differences,” id. at 339.
4
Presidential statements necessarily shed light on executive policy. See, e.g.,
Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2081 (2015) (using presidential
statement to show United States’ position on status of Jerusalem); Clinton v. City of New
York, 524 U.S. 417, 495–96 (1998) (Breyer, J., dissenting) (relying on presidential
statements to demonstrate effect of Line Item Veto Act).
5
When relevant, the press secretary and other White House Official’s statements
can represent official government position. See, e.g., Reynolds v. United States, 123 S.
Ct. 975, 984 (2012) (citing to the Office of the Press Secretary to show President’s
position on registration of sex offenders who committed offenses before enactment of the
Adam Walsh Child Protection and Safety Act of 2006); Hamdi v. Rumsfeld, 542 U.S.
507, 549 (2004) (Souter, J., concurring in part, dissenting in part, and concurring in the
judgment) (relying on Office of the White House Press Secretary’s statement to identify
official executive policy).
135
B.
The President issued EO-2 on March 6, 2017. See Exec. Order 13,780, Protecting
the Nation From Foreign Terrorist Entry Into the United States, 82 Fed. Reg. 13209 (Mar.
6, 2017). Like its predecessor, EO-2 lacks evidentiary support, is logically inconstant,
and evinces an intent to discriminate against Muslims.
1.
First, the Government offers very little evidence in an attempt to support the
President’s ban of approximately 180 million people. EO-2 claims, “hundreds of persons
born abroad have been convicted of terrorism-related crimes in the United States” but
cites only two such examples, each of which is weakly related, if at all, to the purported
purpose of EO-2. EO-2, § 1(h). One example is from Iraq, but, as Iraq is not part of EO-
2, it does not support this ban at all. The other example involves a child brought to the
United States as a two-year-old. As this two-year-old was ultimately radicalized in the
United States and not abroad, this case is unrelated to better screening and vetting -- the
purported purpose of EO-2. See Br. for Cato Institute as Amicus Curiae Supporting
Appellees at 12–13, Int’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir.
argued May 8, 2017; filed Apr. 19, 2017), ECF No. 185; EO-2, § 1(a), (h).
In sharp contrast to the dearth of evidence to support the purported purpose of EO-
2, 42 bipartisan former national security officials concluded EO-2 “bear[s] no rational
relation to the President’s stated aim of protecting the nation from foreign terrorism.”
Corrected Br. for Former National Security Officials as Amici Curiae Supporting
Appellees at 4, Int’l Refugee Assistance Project v. Trump, No. 17-1351 (4th Cir. argued
136
May 8, 2017; filed Apr. 13, 2017), ECF No. 126. In addition, since the issuance of EO-1,
a report by the Department of Homeland Security has found that “country of citizenship
is unlikely to be a reliable indicator of potential terrorist activity,” likewise undermining
any purported security justification for the Order. J.A. 419.
2.
The Government’s untenable position is made even worse by the fact that the
Government’s purported justification for EO-2 does not logically support the ban it
created. EO-2 reasoned that people coming from the six banned countries posed an
increased risk of committing terrorist acts because, according to the Department of
State’s Country Reports on Terrorism 2015 (the “Country Reports”), “each of these
countries is a state sponsor of terrorism, has been significantly compromised by terrorist
organizations, or contains active conflict zones,” and were unwilling or unable “to share
or validate important information about individuals seeking to travel to the United
States.” EO-2, § 1(d); see § 1(e) (citing Country Reports). However, given these
conditions as the reason for the ban, and based on the Country Reports, two other
majority Christian countries -- Venezuela and the Philippines -- should have logically
been included. See U.S. Dep’t of State, Bureau of Counterterrorism and Countering
Violent Extremism, Country Reports on Terrorism 2015 78–85, 297–98, 308–09, 314–
15, 352, 380 (June 2016), https://www.state.gov/documents/organization/258249.pdf
(excerpts saved as ECF opinion attachment). Neither country is willing and able to help
the Government verify information about people attempting to travel to the United States,
and both countries have terrorist organizations operating within their boundaries.
137
Therefore, applying the Government’s logic, the potential of a terrorist act from a
national of Venezuela or the Philippines would also justify a blanket ban on all nationals
from these countries. Interestingly, however, the CIA World Factbook reports that
Venezuelan population is, at most, 2% Muslim, and the Philippine population is 5%
Muslim. See Cent. Intelligence Agency, Field Listings: Religions, World Factbook,
https://www.cia.gov/library/publications/the-world-factbook/fields/2122.html (last visited
May 23, 2017) (saved as ECF opinion attachment). Thus, the Government has not
consistently applied the criteria it claims it used, and the reason seems obvious -- and
inappropriate.
Moreover, if the conditions in the six countries subject to EO-2 truly motivated the
Government’s travel ban, the Government would have based its ban on contact with the
listed countries, not nationality. Under EO-2, a person who is a citizen of Syria would
not be allowed to enter the United States even if they had never set foot in Syria.
However, a person who lived his or her whole life in Syria but never obtained Syrian
citizenship, and had even recently lived near terrorist-controlled regions of Syria, would
be unaffected and freely allowed to enter the United States. 6 As a result, EO-2 is at once
both overinclusive and underinclusive and bears no logical relationship to its stated
objective.
6
Syrian citizenship is not based on country of birth. See Legislative Decree 276 -
Nationality Law [Syrian Arab Republic], Legislative Decree 276, 24 November 1969.
Therefore, a person can have Syrian citizenship without ever setting foot in the country
and a person who lives in Syria for their entire lifetime may not have Syrian citizenship.
138
Last, but by no means least, EO-2 identifies and discriminates against Muslims on
its face. It identifies only Muslim majority nations, thus banning approximately 10% of
the world’s Muslim population from entering the United States. It discusses only Islamic
terrorism. And, it seeks information on honor killings -- a stereotype affiliated with
Muslims 7 -- even though honor killings have no connection whatsoever to the stated
purpose of the Order. 8
C.
All of this evidence -- arising after January 20, 2017 -- leads to only one
conclusion: the principal motivation for the travel ban was a desire to keep Muslims from
entering this country. EO-2 does not pass constitutional muster. Our constitutional
system creates a strong presumption of legitimacy for presidential action; however, this
deference does not require us to cover our eyes and ears and stand mute simply because a
president incants the words “national security.” The Constitution and our system of
democracy requires that we ensure that any and every action of the President complies
with the protections it enshrines.
7
Honor killings, in which family members kill one of their own (usually a
woman) under the belief that the murder is necessary to vindicate the family’s honor,
occur within societies of many faiths and, notably, in countries that were not subject to
either Executive Order. See Kimberly Winston, Activists: Trump Call for Honor Killings
Report Targets Muslims, USA Today (March 7, 2017, 3:06 PM),
https://www.usatoday.com/story/news/2017/03/07/activists-trump-call-honor-killings-
report-targets-muslims/98861230/ (saved as ECF opinion attachment).
8
EO-1 also sought information on honor killings. See EO-1 § 10(a)(iii).
139
III.
Finally, I would conclude Appellees have demonstrated a likelihood of success on
the merits of their argument that Section 2(c) of EO-2, as it applies to immigrant visas,
violates 8 U.S.C. § 1152(a)(1)(A) of the INA. 9
Section 1182(f) of Title 8 states that the President may “suspend the entry of all
aliens or any class of aliens” “for such period as he shall deem necessary” when the
President finds that such entry “would be detrimental to the interests of the United
States.” However, § 1152(a)(1)(A), which was promulgated after § 1182(f), states that
no person seeking an immigrant visa 10 “shall . . . be discriminated against” on the basis of
“nationality.” To be sure, EO-2 discriminates on the basis of nationality, suspending
entry of “nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen” (the “Designated
Countries”). EO-2, § 2(c). The crux of the Government’s argument, however, is that
§ 1152(a)(1)(A) does not prevent the President, acting pursuant to his § 1182(f) authority,
from suspending entry based on nationality, even if that suspension necessarily mandates
the denial of immigrant visas based on nationality. This is nonsensical. I find this
9
I join in Part I of Judge Keenan’s opinion, concluding that the plaintiffs possess
standing to bring a claim under the INA.
10
Immigrant visas are issued to persons seeking admission to the United States
with the goal of obtaining lawful permanent residence status. See 8 U.S.C.
§§ 1101(a)(15), (20), 1201(a)(1)(A). Those seeking admission for other purposes, such
as business, study, or tourism, typically receive nonimmigrant visas. See id.§§ 1101(a)(15), 1201(a)(1)(B). I would decline Appellees’ invitation to extend
§ 1152(a)(1)(A) to nonimmigrant visas.
140
argument to contravene longstanding canons of statutory construction as well as the text
and effect of EO-2 itself.
A.
Our jurisprudence gives ample guidance for a situation in which two statutes
conflict with one another. But the Government believes § 1182(f) and § 1152(a)(1)(A)
do not conflict at all. Instead, the Government posits that the two statutes “address
different activities handled by different government officials.” Appellants’ Br. 31
(internal quotation marks omitted). The Government thus believes the specific visa
denial warranted by EO-2 falls squarely within the broad ambit of § 1182(f).
I will first address whether we are faced with any real conflict between these
provisions. “When two acts touch upon the same subject, both should be given effect if
possible.” United States v. Mitchell, 39 F.3d 465, 472 (4th Cir. 1994) (citation omitted).
And “[i]t is a fundamental canon of statutory construction that the words of a statute must
be read in their context and with a view to their place in the overall statutory scheme.”
Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(internal quotation marks omitted). We must “fit, if possible, all parts into an harmonious
whole.” Id. (quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389 (1959)). In this vein,
8 U.S.C. § 1201(g) provides, “No visa . . . shall be issued to an alien . . . ineligible to
receive a visa . . . under section 1182 . . . .” Thus, when a President suspends entry to a
national from a Designated Country and renders him inadmissible under § 1182(f), there
is a strong argument that the alien must be denied a visa. See generally 8 U.S.C. § 1182141
(titled “Inadmissible aliens”). To conclude that the two statutes operate independently
and deal with totally separate executive functions would be to ignore this link.
Furthermore, although the Government contends the provisions at issue do not
touch upon the same subject -- asserting that the visa issuance process is a “different
activity” than suspension of entry -- its own arguments and the text and operation of EO-
2 belie this notion.
EO-2 directs that the entry of nationals of the Designated Countries be suspended,
but the Government admits the Department of State will “implement th[e] suspension [of
entry] by declining to issue visas to aliens who are covered by the Order and who are not
found eligible for a waiver.” Appellants’ Br. 34 n.12 (emphasis supplied); see also J.A.
729 (Government counsel admitting immigrant visa applicants “will be denied a visa if
they are a national from the listed country”). EO-2 also delineates who is entitled to or
restricted from entry based on one’s visa status. See EO-2, § 3(a) (defining the scope of
entry suspension to those outside the United States on the effective date of the order who
“did not have a valid visa” on the date of the now-revoked first executive order; and “do
not have a valid visa” as of the effective date of EO-2). Further, the Government offers
the precarious justification that “when an alien subject to [EO-2] is denied an immigrant
visa, he is not suffering discrimination on the basis of nationality of the sort prohibited by
Section 1152(a)(1)(A); instead, he is being denied a visa because he has been validly
barred from entering the country.” Appellants’ Br. 33. Following this circular logic, an
alien is barred from entry because he does not have and cannot attain a visa, but he is
142
denied a visa because he is barred from entry. It is clear that in EO-2, the visa issuance
and entry concepts are intertwined to the point of indistinguishability. 11
The Government also contends it would be a “fruitless exercise” and would “make
no sense” to enable issuances of immigrant visas pursuant to § 1152(a)(1)(A), when those
aliens receiving the visas would nonetheless be barred from entering the United States
once they reach our borders. Appellants’ Br. 31, 35. I fail to see how permitting a
national of one of the Designated Countries to continue with her immigrant visa process
would be fruitless, unless, of course, the Government intends to use the ban as a gateway
to a much more permanent ban, ultimately sweeping in those nationals whose processes
were halted by the order. See Section 1(a) (stating that a “Policy and Purpose” of the EO-
2 is to improve the protocols and procedures “associated with the visa-issuance process”).
Moreover, being a visa holder, even if one may be temporarily inadmissible, carries with
it a certain status with regard to EO-2. See, e.g., EO-2, § 3(c) (suggesting that one
receiving a visa from U.S. Customs and Border Protection during the protocol review
period could gain entry to the United States).
I likewise fail to see how allowing one to continue with her incipient visa process
would “make no sense,” when that national could be one step closer to ultimately
reuniting with her loved ones. For example, in the case of John Doe #1, his wife could
conceivably proceed with her visa application interview, obtain her visa, and once the
11
Indeed, Section 3 of EO-1, the predecessor to EO-2’s Section 2, was entitled
“Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of
Countries of Particular Concern.”
143
protocol review period has ended, join her husband in the United States as soon as
possible thereafter, quickly redressing John Doe #1’s constitutionally cognizable injury
of being separated from an immediate family member.
For all of these reasons, I would reject the Government’s argument that
§ 1152(a)(1)(A) and § 1182(f) operate in separate statutory spheres. I believe
§ 1152(a)(1)(A)’s prohibition limits the President’s § 1182(f) authority in the issuance of
EO-2. As the Government itself mentioned in its opening brief, “courts judge the
legitimacy of a law by what it says and does.” Appellants’ Br. 2. Here, the ultimate
effect of what EO-2 actually does is require executive agencies to deny visas based on
nationality.
Therefore, I next turn to the traditional canons of statutory construction to
determine how to resolve this tension between § 1182(f) and § 1152(a)(1)(A). I approach
this analysis mindful that the executive branch’s authority over immigration affairs is
conferred and cabined by Congress. See Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C.
Cir. 1986) (The Executive’s “broad discretion over the admission and exclusion of aliens
. . . extends only as far as the statutory authority conferred by Congress.”).
B.
When faced with provisions that apparently conflict, we must give effect to each
provision, with a later enacted, more specific statute trumping an earlier, more general
one. See Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976); Morton v.
Mancari, 417 U.S. 535, 550–51 (1974) (“[A] specific statute will not be controlled or
nullified by a general one, regardless of the priority of enactment.”); Weinberger v.
144
Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 633 (1973) (“[A]ll parts of a statute, if
at all possible, are to be given effect.”).
First, § 1152(a)(1)(A) must be given effect. Reading § 1182(f) as bestowing upon
the President blanket authority to carry out a suspension of entry, which involves
rejecting a particular country’s immigrant visa applications as a matter of course, would
effectively nullify the protections in § 1152(a)(1)(A) and create an end-run around its
prohibitions against discrimination. It would collapse the statutory distinction between
entry and visa issuance, see 8 U.S.C. § 1201(h) (“Nothing in this chapter shall be
construed to entitle any alien, to whom a visa or other documentation has been issued, to
be admitted [to] the United States, if, upon arrival at a port of entry in the United States,
he is found to be inadmissible under this chapter, or any other provision of law.”), and
ultimately allow the chief executive to override any of Congress’s carefully crafted visa
criterion or grounds for inadmissibility.
Second, § 1182(f) was enacted in 1952, but § 1152(a)(1) was enacted in 1965 as
part of a sweeping amendment of the INA. We assume that “when Congress enacts
statutes, it is aware of relevant judicial precedent.” Merck & Co., Inc. v. Reynolds, 559
U.S. 633, 648 (2010). Thus, we must accept that Congress knew about the President’s
broad authority in § 1182(f) when it enacted § 1152(a)(1)(A), and the latter lists several
exceptions, none of which include the former. See § 1152(a)(1)(A) (exempting
§§ 1101(a)(27), 1151(b)(2)(A)(i), and 1153). Section 1152(a)(1)(A) is also more
specific, applying to demarcated types of discrimination and a certain type of visa. See
145
Radzanower, 426 U.S. at 153 (preference should be given to statute involving a “narrow
[and] precise . . . subject”).
Finally, the Government’s suggestions of potential statutory discord are
unconvincing. For example, the Government relies on 8 U.S.C. § 1185(a)(1), which
makes it unlawful for any alien to enter the United States “except under such reasonable
rules, regulations, and orders, and subject to such limitations” prescribed by the
President. But this provision merely acts as an implementation provision flowing from
§ 1182(f), which, as stated above, is limited by § 1152(a)(1)(A). In addition,
§ 1152(a)(1)(B) is of no concern to this analysis given that it applies to the Secretary of
State, and § 2(c) of EO-2 bars visa issuance to nationals of the Designated Countries,
rather than regulating visa processing locations.
C.
For these reasons, I find Appellees’ statutory argument that EO-2 violates
§ 1152(a)(1)(A) because it requires the denial of immigrant visas on the basis of
nationality the more compelling argument. Therefore, I would conclude that Appellees
have shown a likelihood of success on the merits on this point. I otherwise join Judge
Keenan’s opinion, with the exception of Part II.A.i.
IV.
In conclusion, I believe the district court’s injunction should be affirmed based on
the majority’s Establishment Clause conclusion, although I would do so based only on
consideration of post-inauguration conduct. I also believe that the plaintiffs will likely
146
succeed on the merits of their argument that EO-2 violates the INA for the reasons stated
by Judge Keenan and set forth in Part III of this opinion.
147
NIEMEYER, CIRCUIT JUDGE, with whom JUDGE SHEDD and JUDGE AGEE join,
dissenting:
The district court issued a nationwide preliminary injunction against Executive
Order No. 13,780 issued by President Donald Trump on March 6, 2017, to suspend
temporarily, while vetting procedures could be reviewed, the entry of aliens from six
countries, reciting terrorism-related concerns. While the court acknowledged the
President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to enter the Order and also
acknowledged that the national security reasons given on the face of the Order were
legitimate, the court refused to apply Kleindienst v. Mandel, 408 U.S. 753 (1972), which
held that courts are precluded from “look[ing] behind” “facially legitimate and bona fide”
exercises of executive discretion in the immigration context to discern other possible
purposes, id. at 770. Relying on statements made by candidate Trump during the
presidential campaign, the district court construed the Executive Order to be directed
against Muslims because of their religion and held therefore that it likely violated the
Establishment Clause of the First Amendment.
I conclude that the district court seriously erred (1) by refusing to apply the
Supreme Court’s decision in Mandel; (2) by fabricating a new proposition of law —
indeed, a new rule — that provides for the consideration of campaign statements to recast
a later-issued executive order; and (3) by radically extending Supreme Court
Establishment Clause precedents. The district court’s approach is not only
unprecedented, it is totally unworkable and inappropriate under any standard of analysis.
148
The majority reworks the district court’s analysis by applying Mandel, albeit
contrary to its holding, to defer only to the facial legitimacy of the Order but not to its
facial bona fides, despite the Mandel Court’s holding that “when the Executive exercises
this power negatively on the basis of a facially legitimate and bona fide reason, the courts
will neither look behind the exercise of that discretion, nor test it by balancing its
justification against the First Amendment interests” of the plaintiffs. Mandel, 408 U.S. at
770 (emphasis added). In addition, the majority, after violating Mandel, then adopts the
same new rule of law adopted by the district court to consider candidate Trump’s
campaign statements to find the Executive Order’s stated reasons “pretext[ual],” ante at
51, and then to rewrite the Order to find it in violation of the Establishment Clause. This
too is unprecedented and unworkable.
Accordingly, I respectfully dissent. I would vacate the district court’s injunction.
I
A
The Immigration and Nationality Act, 8 U.S.C. §§ 1101 et seq., requires that an
alien, to obtain admission into the United States, must normally both possess a visa and
be admissible upon his or her arrival at a port of entry, id. §§ 1181, 1182(a)(7), 1201(h).
Exceptions exist which allow for entry without a visa. For instance, Congress has
established a Visa Waiver Program, which allows nationals of certain countries to seek
temporary admission into the United States for 90 days or less. 8 U.S.C. § 1187. In
December 2015, however, Congress excluded aliens from admission under this program
149
who are dual nationals of or have recently visited Iraq, Syria, any country designated by
the Secretary of State to be a state sponsor of international terrorism, or any country that
the Secretary of Homeland Security has deemed to be a country or area of concern. Pub.
L. No. 114-113, div. O, tit. II, § 203, 129 Stat. 2988, 2989–91 (2015) (codified at 8
U.S.C. § 1187(a)(12)). At all times relevant to this litigation, the countries designated by
the Secretary of State to be state sponsors of international terrorism have been Iran,
Sudan, and Syria. U.S. Dep’t of State, Country Reports on Terrorism 2015, at 4, 299–
302 (June 2016), https://perma.cc/KJ4B-E4QZ. Also, in February 2016, the Department
of Homeland Security (“DHS”) excluded recent visitors to and nationals of Libya,
Somalia, and Yemen from the Program. DHS, DHS Announces Further Travel
Restrictions for the Visa Waiver Program (Feb. 18, 2016), https://perma.cc/87CZ-L4FU.
Even when an alien possesses a visa, the alien must also be admissible to the
United States when arriving at a port of entry. Congress has accorded the President broad
discretion over the admission of aliens, providing in 8 U.S.C. § 1182(f):
Whenever the President finds that the entry of any aliens or of any class of
aliens into the United States would be detrimental to the interests of the
United States, he may by proclamation, and for such period as he shall
deem necessary, suspend the entry of all aliens or any class of aliens as
immigrants or nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate.
In addition, Congress has specified that the entry of aliens is governed by “such
reasonable rules, regulations, and orders, and subject to such limitations and exceptions
as the President may prescribe.” Id. § 1185(a)(1).
150
B
On January 27, 2017, the President issued Executive Order 13,769, 89 Fed. Reg.
8977, which was challenged in several courts. A district court in Washington enjoined
nationally the enforcement of several provisions of that order, see Washington v. Trump,
No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), and the Ninth Circuit
declined to stay the district court’s injunction pending appeal, Washington v. Trump, 847
F.3d 1151 (9th Cir. 2017) (per curiam).
Rather than challenge that decision further, the President issued a revised order —
Executive Order 13,780 — on March 6, 2017, entitled, “Protecting the Nation From
Foreign Terrorist Entry Into the United States,” 82 Fed. Reg. 13,209, which is the Order
before us. This Order revoked the earlier order and rendered moot the challenge to the
earlier order.
The first Section of the revised Executive Order announces the policy goals of
“protect[ing] the Nation from terrorist activities by foreign nationals” by “improv[ing]
the screening and vetting protocols and procedures associated with the visa-issuance
process and the [United States Refugee Admissions Program]” that “play a crucial role in
detecting foreign nationals who may commit, aid, or support acts of terrorism and in
preventing those individuals from entering the United States.” Order Preamble, § 1(a).
The Order then recites the previous Administration’s response to terrorist activities
in the countries covered by the current Order:
Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen . . . had [during the
prior Administration] already been identified as presenting heightened
concerns about terrorism and travel to the United States. . . . [And] [i]n
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2016, the Secretary of Homeland Security designated Libya, Somalia, and
Yemen as additional countries of concern for travel purposes, based on
consideration of . . . statutory factors related to terrorism and national
security . . . . Additionally, Members of Congress have expressed concerns
about screening and vetting procedures following recent terrorist attacks in
this country and in Europe.
Order § 1(b)(i). Describing further the threats posed generally by these nations, the Order
states:
Nationals from the countries previously identified . . . warrant additional
scrutiny in connection with our immigration policies because the conditions
in these countries present heightened threats. Each of these countries is a
state sponsor of terrorism, has been significantly compromised by terrorist
organizations, or contains active conflict zones. Any of these
circumstances diminishes the foreign government’s willingness or ability to
share or validate important information about individuals seeking to travel
to the United States. Moreover, the significant presence in each of these
countries of terrorist organizations, their members, and others exposed to
those organizations increases the chance that conditions will be exploited to
enable terrorist operatives or sympathizers to travel to the United States.
Order § 1(d). Finally, the Order describes as follows “the conditions in six of the
previously designated countries that demonstrate why their nationals continue to present
heightened risks to the security of the United States,” relying on the Department of
State’s Country Reports of Terrorism 2015:
(i) Iran. Iran has been designated as a state sponsor of terrorism since 1984
and continues to support various terrorist groups, including Hizballah,
Hamas, and . . . al Qa’ida . . . . Iran does not cooperate with the United
States in counterterrorism efforts.
(ii) Libya. Libya is an active combat zone . . . . In many parts of the
country, security and law enforcement functions are provided by armed
militias rather than state institutions. Violent extremist groups, including
the Islamic State of Iraq and Syria (ISIS), have exploited these conditions
to expand their presence in the country. . . . The United States Embassy in
Libya suspended its operations in 2014.
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(iii) Somalia. Portions of Somalia have been terrorist safe havens. Al-
Shabaab, an al-Qa’ida-affiliated terrorist group, has operated in the country
for years and continues to plan and mount operations within Somalia and in
neighboring countries. Somalia has porous borders, and most countries do
not recognize Somali identity documents. . . .
(iv) Sudan. Sudan has been designated as a state sponsor of terrorism
since 1993 because of its support for international terrorist groups,
including Hizballah and Hamas . . . [and it] provided safe havens for al-
Qa’ida and other terrorist groups to meet and train. . . . [E]lements of core
al-Qa’ida and ISIS-linked terrorist groups remain active in the country.
(v) Syria. Syria has been designated as a state sponsor of terrorism since
1979. [Although] [t]he Syrian government is engaged in an ongoing
military conflict against ISIS[,] . . . ISIS continues to attract foreign fighters
to Syria and to use its base in Syria to plot or encourage attacks around the
globe, including in the United States. The United States Embassy in Syria
suspended its operations in 2012. Syria does not cooperate with the United
States’ counterterrorism efforts.
(vi) Yemen. . . . Both ISIS and a second group, al-Qa’ida in the Arabian
Peninsula (AQAP), have exploited [internal] conflict to expand their
presence in Yemen and to carry out hundreds of attacks. Weapons and
other materials smuggled across Yemen’s porous borders are used to
finance AQAP and other terrorist activities. In 2015, the United States
Embassy in Yemen suspended its operations . . . .
Order § 1(e). Based on this collection of information, the Order concludes that, “[i]n
light of the conditions in these six countries, until [an] assessment of current screening
and vetting procedures . . . is completed, the risk of erroneously permitting entry of a
national of one of these countries who intends to commit terrorist acts or otherwise harm
the national security of the United States is unacceptably high.” Order § 1(f).
The operative provisions, as relevant here, are stated in Section 2 of the Order,
which directs the Secretary of Homeland Security, in consultation with the Secretary of
State and the Director of National Intelligence, to “conduct a worldwide review to
identify whether, and if so what, additional information will be needed from each foreign
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country to adjudicate an application by a national of that country for a visa, admission, or
other benefit under the INA (adjudications) in order to determine that the individual is not
a security or public-safety threat.” Order § 2(a). The Secretary of Homeland Security is
then directed to present a report with his findings to the President. Order § 2(b). And
finally, pending the review, the Order prohibits the entry of certain nationals from the six
countries, as follows:
To temporarily reduce investigative burdens on relevant agencies during the
review period described in subsection (a) of this section, to ensure the
proper review and maximum utilization of available resources for the
screening and vetting of foreign nationals, to ensure that adequate standards
are established to prevent infiltration by foreign terrorists, and in light of
the national security concerns referenced in section 1 of this order, I hereby
proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C.
1182(f) and 1185(a), that the unrestricted entry into the United States of
nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be
detrimental to the interests of the United States. I therefore direct that the
entry into the United States of nationals of those six countries be suspended
for 90 days from the effective date of this order, subject to the limitations,
waivers, and exceptions set forth in sections 3 and 12 of this order.
Order § 2(c).
The referenced limitations in Section 3 specify that the suspension does not apply
to nationals of the designated countries who are inside the United States on the effective
date of the Order (March 16, 2017) or who had a valid visa at 5:00 p.m. on January 27,
2017 or on the effective date of the Order. Order § 3(a). The Section goes on to create
exceptions that allow the entry of lawful permanent residents of the United States, foreign
nationals with valid travel documents that are not visas, dual nationals traveling on
passports issued by a non-designated country, foreign nationals traveling on diplomatic
visas, foreign nationals granted asylum, refugees already admitted to the United States,
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and any individual who has been granted withholding of removal, advance parole, or
protection under the Convention Against Torture. Order § 3(b). Finally, Section 3
allows consular officers or the Commissioner of U.S. Customs and Border Protection to
“decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the
entry of, a foreign national for whom entry is otherwise suspended if the foreign national
has demonstrated to the officer’s satisfaction that denying entry during the suspension
period would cause undue hardship, and that his or her entry would not pose a threat to
national security and would be in the national interest.” Order § 3(c).
In sum, nationals of the designated countries who lack visas were, prior to the
Order, unable to enter the United States under the Visa Waiver Program, 8 U.S.C.
§ 1187. Nationals who possess visas are exempted from the Order, as are most other
nationals who have the ability to enter the United States through another travel document.
See Order §§ 2, 3. The Order thus affects nationals of the designated countries who,
lacking visas, were already unable to enter the United States but who had hoped to obtain
a visa and to enter the United States within the 90 day period of the Order. 1
C
The plaintiffs are three organizations and six individuals. Two of the
organizations, the International Refugee Assistance Project (“IRAP”) and HIAS, Inc.,
provide legal assistance and aid to refugees, while the third organization, the Middle East
1
Other portions of the Order, not at issue here, suspend adjudication of
applications under the Refugee Program for 120 days, subject to case-by-case waivers,
and limit to 50,000 the number of refugees admitted in fiscal year 2017. Order § 6(a)–
(c).
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Studies Association (“MESA”), is an organization of students and scholars of Middle
Eastern studies. The six individual plaintiffs are U.S. citizens or lawful permanent
residents who alleged that the Order would prevent or delay foreign-national family
members from entering the United States.
On March 10, 2017, after Executive Order 13,780 was issued but before it went
into effect, the plaintiffs filed their operative complaint, as well as a motion for a
preliminary injunction to enjoin enforcement of the Order. They alleged, as relevant
here, that the Order violates the Establishment Clause of the First Amendment and 8
U.S.C. § 1152(a), which prohibits discrimination based on nationality in issuing
immigrant visas. After expedited briefing and argument, the district court entered a
nationwide preliminary injunction that barred enforcement of Section 2(c) of the Order.
The district court began its analysis by concluding that at least three of the
individual plaintiffs had standing.
On the merits, the court concluded that the plaintiffs were likely to succeed on
their claim that the Order violated the Establishment Clause. Although the court
acknowledged that “the Second Executive Order is facially neutral in terms of religion”
and that “national security interests would be served by the travel ban,” it nonetheless
looked behind the Order to statements made during the presidential campaign by
candidate Trump and concluded, based on these statements, that the Order was likely
motivated by anti-Muslim animus. In looking behind the Order, the court refused to
apply Mandel, stating as its reason that Mandel applied to the review of decisions by
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immigration officers denying visas and “does not apply to the promulgation of a
sweeping immigration policy at the highest levels of the political branches.”
The district court also found that the plaintiffs were likely to succeed on a small
portion of their statutory claim, concluding that the Order conflicted with federal law
insofar as it had “the specific effect of halting the issuance of [immigrant] visas to
nationals of the Designated Countries.” Otherwise, it found that “an executive order
barring entry to the United States based on nationality pursuant to the President’s
authority under § 1182(f) [did] not appear to run afoul of the provision in § 1152(a)
barring discrimination in the issuance of immigrant visas.” (Internal quotation marks
omitted).
From the entry of the preliminary injunction, the government filed this appeal.
II
In affirming the district court’s ruling based on the Establishment Clause, the
majority looks past the face of the Order’s statements on national security and
immigration, which it concedes are neutral in terms of religion, and considers campaign
statements made by candidate Trump to conclude that the Order denigrates Islam, in
violation of the Establishment Clause. This approach (1) plainly violates the Supreme
Court’s directive in Mandel; (2) adopts a new rule of law that uses campaign statements
to recast the plain, unambiguous, and religiously neutral text of an executive order; and
(3) radically extends the Supreme Court’s Establishment Clause holdings. I address these
legal errors in turn.
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A
I begin with the majority’s failure faithfully to apply Mandel.
In Mandel, Ernest Mandel, a Belgian citizen, was denied a nonimmigrant visa to
enter the United States to participate in conferences and to give speeches. In denying his
admission to the United States, the Attorney General relied on 8 U.S.C.
§§ 1182(a)(28)(D), (G)(v) and 1182(d)(3)(A), which provided that aliens who advocate
or publish “the economic, international, and governmental doctrines of world
communism or the establishment in the United States of a totalitarian dictatorship” shall
be excluded from admission to the United States unless granted a waiver by the Attorney
General. Mandel admitted that he was a Marxist who advocated the economic,
governmental, and international doctrines of world communism, and the Attorney
General refused to grant him a waiver. Mandel, 408 U.S. at 756, 759. University
professors in the United States, who had invited Mandel to the United States to speak, as
well as Mandel himself, filed an action challenging the constitutionality of the relevant
statutory provisions and the Attorney General’s exercise of his authority under those
provisions. Id. at 759–60. They alleged that the relevant statutory provisions and the
Attorney General’s denial of a waiver were unconstitutional because they deprived the
American plaintiffs of their First Amendment rights to hear and meet with Mandel. Id. at
760.
Despite its conclusion that the professors’ First Amendment rights were well-
established, the Supreme Court held that Mandel’s exclusion was lawful. At the outset,
the Court explicitly accepted that Mandel’s exclusion implicated the First Amendment. It
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found, however, that its “[r]ecognition that First Amendment rights are implicated . . .
[was] not dispositive of [its] inquiry.” Mandel, 408 U.S. at 765. The Court stated that,
based on “ancient principles of the international law of nation-states,” Congress could
categorically bar those who advocated Communism from entry, explaining that “the
power to exclude aliens is inherent in sovereignty, necessary for maintaining normal
international relations and defending the country against foreign encroachments and
dangers — a power to be exercised exclusively by the political branches of government.”
Id. The Court repeated Justice Harlan’s holding that the government’s power “to exclude
aliens altogether from the United States, or to prescribe the terms and conditions upon
which they may come to this country, and to have its declared policy in that regard
enforced exclusively through executive officers, without judicial intervention, is settled
by our previous adjudications.” Id. at 766 (quoting Lem Moon Sing v. United States, 158
U.S. 538, 547 (1895)).
The Court then rejected the argument that the Attorney General’s denial of a
waiver violated the First Amendment. The Court forbade judges from interfering with
the executive’s “facially legitimate and bona fide” exercise of its immigration authority
or balancing that exercise against constitutional rights. Mandel, 408 U.S. at 770.
Specifically, it recognized that “Congress has delegated conditional exercise of this
power [of exclusion] to the Executive” and declined to apply more scrutiny to executive
exercise of that power than it would to Congress’s own actions. Id. It concluded:
We hold that when the Executive exercises this power negatively on the
basis of a facially legitimate and bona fide reason, the courts will neither
look behind the exercise of that discretion, nor test it by balancing its
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justification against the First Amendment interests of those who seek
personal communication with the applicant.
Id. (emphasis added).
The holding of Mandel ineluctably requires that we vacate the district court’s
preliminary injunction. The similarities between Mandel and this case are numerous and
significant. In both cases, Congress delegated power to the executive to prohibit the
entry of a certain class of foreign nationals. 8 U.S.C. § 1182(a)(28)(D), (d)(3)(A) (1970);
8 U.S.C. § 1182(f) (2016). The plaintiffs in each case challenged the executive’s exercise
of that statutory discretion as violative of their individual First Amendment rights. The
court in Mandel rejected this challenge because, even assuming a constitutional violation
lurked beneath the surface of the executive’s implementation of his statutory authority,
the reasons the executive had provided were “facially legitimate and bona fide.” We
must thus reject this similar challenge today.
The Court has consistently reaffirmed and applied Mandel’s holding. In Fiallo v.
Bell, 430 U.S. 787 (1977), the Court declined to scrutinize a statute that gave different
immigration status to a child born out of wedlock depending on whether it was the child’s
mother or father who was a citizen or lawful permanent resident. Although that statute
involved two suspect classifications — gender and legitimacy — the Court, citing
Mandel, nonetheless concluded that “it is not the judicial role in cases of this sort to
probe and test the justifications” of immigration policies. Id. at 799. Accordingly, in
response to the plaintiffs’ arguments that the distinction was based “on an overbroad and
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outdated stereotype,” the Court indicated that “this argument should be addressed to the
Congress rather than the courts.” Id. at 799 n.9.
And both Mandel and Fiallo were reaffirmed more recently in Justice Kennedy’s
opinion in Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in the
judgment). In Din, the Court considered a suit by a United States citizen who alleged that
the government deprived her of a liberty interest protected under the Due Process Clause
by denying her husband’s visa application without adequate explanation, providing only a
citation to the provision under which the visa was denied. Justice Kennedy, writing for
himself and Justice Alito to provide the fourth and fifth votes in favor of the government,
stated that “[t]he reasoning and the holding in Mandel control here” and that the
reasoning of Mandel “has particular force in the area of national security.” Id. at 2140.
He concluded that “respect for the political branches’ broad power over the creation and
administration of the immigration system” meant that, because the government had
provided Din with a facially legitimate and bona fide reason for its action, Din had no
viable constitutional claim. Id. at 2141.
The plaintiffs can provide no coherent basis for their assertion that this case is not
controlled by Mandel and its progeny. They do argue that the holding of Mandel does
not apply to claims under the Establishment Clause, but they are unable to point to any
case in which the Supreme Court has ever suggested the existence of such a limitation,
or, indeed, any case in which it has suggested that some areas of law are not governed by
the rule laid out in Mandel. Absent such a case, we are not now at liberty to craft — out
of whole cloth — exceptions to controlling Supreme Court precedents.
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To reach its conclusion, the majority does not adopt the plaintiffs’ broad argument
that Mandel does not even apply. Instead, in its attempt to escape Mandel’s clear
holding, it asserts that “[w]here plaintiffs have seriously called into question whether the
stated reason for the challenged action was provided in good faith,” the court may “step
away from our deferential posture and look behind the stated reason for the challenged
action” to attempt to discern the action’s purpose. Ante at 50. This approach, which
totally undermines Mandel, is the foundation of its new rule that campaign statements
may be considered to recast an unambiguous, later-adopted executive order on
immigration. The majority states that even though the Order is on its face legitimate and
provides reasons rooted in national security, because the plaintiffs “have more than
plausibly alleged” bad faith, “we no longer defer” to the Order’s stated purpose “and
instead may ‘look behind’ [the Order]” in an attempt to discern whether the national
security reason was in fact provided as a pretext for its religious purpose. Ante at 52.
This approach casually dismisses Mandel, Fiallo, and Din.
If the majority’s understanding had been shared by the Supreme Court, it would
have compelled different results in each of Mandel, Fiallo, and Din, as in each of those
cases the plaintiffs alleged bad faith with at least as much particularity as do the plaintiffs
here. In Mandel, the allegations were such that Justice Marshall, writing in dissent,
observed that “[e]ven the briefest peek behind the Attorney General’s reason for refusing
a waiver in this case would reveal that it is a sham.” Id. at 778 (Marshall, J., dissenting).
In Fiallo, Justice Marshall, again writing in dissent, pointed to the fact that the statute in
question relied on “invidious classifications.” Fiallo, 430 U.S. at 810 (Marshall, J.,
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dissenting). And in Din, the plaintiffs argued that the consular decision should be
reviewed because it fell within the “limited circumstances where the government
provides no reason, or where the reason on its face is illegitimate.” Brief for Respondent
at 31, Din, 135 S. Ct. 2128 (No. 13-1402), 2015 WL 179409. But, as those cases hold, a
lack of good faith must appear on the face of the government’s action, not from looking
behind it.
As support for its dramatic departure from Supreme Court precedent, the majority
relies on a scattershot string of quotations drawn out of context from one sentence in Din.
The carelessness of the majority’s presentation is demonstrated simply by a comparison
of its characterization of Din and the actual language of Din taken in context. Here is
how the majority characterizes Din:
Justice Kennedy explained that where a plaintiff makes “an affirmative
showing of bad faith” that is “plausibly alleged with sufficient
particularity,” courts may “look behind” the challenged action to assess
its “facially legitimate” justification.
Ante at 50. And here is what Justice Kennedy in Din actually said, with the language
quoted by the majority in bold:
Absent an affirmative showing of bad faith on the part of the consular
officer who denied Berashk a visa — which Din has not plausibly alleged
with sufficient particularity — Mandel instructs us not to “look behind”
the Government’s exclusion of Berashk for additional factual details
beyond what its express reliance on § 1182(a)(3)(B) encompassed.
Din, 135 S. Ct. at 2141 (emphasis added).
More problematic is the majority’s misunderstanding of Din’s actual holding,
which the majority tries to reshape for its own ends. In Din, when the plaintiff refused to
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accept the curt explanation of why her husband was denied a visa, she claimed that due
process required that the government disclose the factual basis for its determination.
Faced with Din’s request for these underlying facts, the Supreme Court declined, instead
applying Mandel’s requirement that the plaintiff must show that the government’s
reasons were not facially legitimate and not facially bona fide. As Justice Kennedy
explained:
Din claims due process requires she be provided with the facts underlying
this determination, arguing Mandel required a similar factual basis.
* * *
Din perhaps more easily could mount a challenge to her husband’s visa
denial if she knew the specific subsection on which the consular office
relied.
* * *
[But] the notice given was constitutionally adequate, particularly in light of
the national security concerns the terrorism bar addresses. [Citing Fiallo,
430 U.S. at 795–96]. And even if Din is correct that sensitive facts could
be reviewed by courts in camera, the dangers and difficulties of handling
such delicate security material further counsel against requiring disclosure
in a case such as this.
* * *
For these reasons, my conclusion is that the Government satisfied any
obligation it might have had to provide Din with a facially legitimate and
bona fide reason for its action when it provided notice that her husband was
denied admission to the country under § 1182(a)(3)(B). By requiring the
Government to provide more, the Court of Appeals erred in adjudicating
Din’s constitutional claims.
Din, 135 S. Ct. at 2140–41 (Kennedy, J., concurring in judgment) (emphasis added)
(citations omitted). Nowhere did the Din Court authorize going behind the government’s
notice for the purpose of showing bad faith. The plaintiff had to show facially that the
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notice was in bad faith, i.e., not bona fide. The majority’s selective quotations from Din,
which conceal Din’s faithful application of Mandel, are simply misleading. Indeed, the
impetus for the majority’s approach is revealed when it states, “If we limited our purpose
inquiry to review of the operation of a facially neutral order, we would be caught in an
analytical loop, where the order would always survive scrutiny.” Ante at 62 (emphasis
added). That consequence — that facially neutral executive orders survive review — is
precisely what Mandel requires.
In looking behind the face of the government’s action for facts to show the alleged
bad faith, rather than looking for bad faith on the face of the executive action itself, the
majority grants itself the power to conduct an extratextual search for evidence suggesting
bad faith, which is exactly what three Supreme Court opinions have prohibited. Mandel,
Fiallo, and Din have for decades been entirely clear that courts are not free to look
behind these sorts of exercises of executive discretion in search of circumstantial
evidence of alleged bad faith. The majority, now for the first time, rejects these holdings
in favor of its politically desired outcome.
B
Considering the Order on its face, as we are required to do by Mandel, Fiallo, and
Din, it is entirely without constitutional fault. The Order was a valid exercise of the
President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a) to suspend the entry of “any
aliens” or “any class of aliens” and to prescribe “reasonable rules, regulations, and
orders” regarding entry, so long as the President finds that the aliens’ admission would be
“detrimental to the interests of the United States.” And Executive Order No. 13,780 was
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not the first to be issued under this authority. Such orders were entered by Presidents
Reagan, George H.W. Bush, Clinton, George W. Bush, and Obama. 2 Moreover, the
particular reasons given for the issuance of the Executive Order respond directly to the
described risk of terrorism from six countries, justifying the imposition of a 90-day pause
in the admission of nationals from those countries while the Administration determines
whether existing screening and vetting procedures are adequate.
The Executive Order begins by noting that the previous Administration, in
conjunction with Congress, identified seven countries — Iran, Iraq, Libya, Somalia,
Sudan, Syria, and Yemen — “as presenting heightened concerns about terrorism and
travel to the United States,” specifically noting that the previous Administration’s
Secretary of Homeland Security designated Libya, Somalia, and Yemen as countries of
concern for travel purposes based on terrorism and national security. Order § 1(b)(i).
And finally it notes that Members of Congress had expressed concerns about “screening
and vetting procedures” following terrorist attacks in 2016 in Europe, as well as in this
country. Id.
Adding to the historical assessment of those risks, the Executive Order continues
with its conclusions, based on additional data, that the conditions in the countries
2
See, e.g., Exec. Order 12,324, 46 Fed. Reg. 48,109 (Sept. 29, 1981) (Reagan);
Proclamation 5,517, 51 Fed. Reg. 30,470 (Aug. 22, 1986) (Reagan); Exec. Order 12,807,
57 Fed. Reg. 23,133 (May 24, 1992) (George H.W. Bush); Proclamation 6,958, 61 Fed.
Reg. 60,007 (Nov. 22, 1996) (Clinton); Proclamation 7,359, 65 Fed. Reg. 60,831 (Oct.
10, 2000) (Clinton); Executive Order 13,276, 67 Fed. Reg. 69,985 (Nov. 15, 2002)
(George W. Bush); Exec. Order 13,692, 80 Fed. Reg. 12,747 (Mar. 8, 2015) (Obama);
Exec. Order 13,726, 81 Fed. Reg. 23,559 (Apr. 19, 2016) (Obama).
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previously identified had worsened, at least with respect to six of the seven countries
(excepting Iraq), noting that some of those countries were state sponsors of terrorism or
were significantly compromised by terrorist organizations. Several of the countries were
unwilling or unable to share or validate information about nationals seeking to travel to
the United States, and in some, the conditions increasingly enabled “terrorist operatives
or sympathizers to travel to the United States.” Order § 1(d).
Finally, the Order addresses the particular circumstances of each of the six
countries covered by the Order, noting for example, that Iran, Sudan, and Syria were state
sponsors of terrorism; that the governments in Libya, Somalia, and Syria were rendered
partially or entirely unable to resist terrorist organizations because of the organizations’
activities; and that Iran, Libya, Syria, and Yemen either were not cooperating with the
United States in its counterterrorism efforts or were unable to do so.
None of the facts or conditions recited as reasons for the issuance of the Executive
Order have been challenged as untrue or illegitimate. Indeed, the plaintiffs conceded
during oral argument that if another candidate had won the presidential election in
November 2016 and thereafter entered this same Executive Order, they would have had
no problem with the Order. As counsel for the plaintiffs stated, “I think in that case [the
Order] could be constitutional.” Similarly, the district court found the face of the Order
to be neutral in terms of religion. And the majority too so concludes. Ante at 52, 59.
Moreover, these reasons amply support the modest action taken by the Executive
Order, which imposes only a temporary pause of 90 days to assess whether the screening
and vetting procedures that are applied to nationals from these high-risk countries are
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adequate to identify and exclude terrorists. Even this pause is accompanied by an
authorization to issue waivers designed to limit any harmful impact without
compromising national security.
While the legitimate justifications for the Order are thoroughly established, its
supposed ills are nowhere present on its face. Far from containing the sort of religious
advocacy or disparagement that can violate the Establishment Clause, the Order contains
no reference to religion whatsoever. Nor is there any trace of discriminatory animus. In
short, under Mandel and its progeny, Executive Order 13,780 comfortably survives our
review. 3
C
The majority’s new rule, which considers statements made by candidate Trump
during the presidential campaign to conclude that the Executive Order does not mean
what it says, is fraught with danger and impracticability. Apart from violating all
established rules for construing unambiguous texts — whether statutes, regulations,
executive orders, or, indeed, contracts — reliance on campaign statements to impose a
new meaning on an unambiguous Executive Order is completely strange to judicial
analysis.
3
The opinions in support of affirmance betray an object beyond a disciplined
analysis. Judge Gregory states, for example, that the Executive Order “drips with
religious intolerance, animus, and discrimination,” ante at 12, and Judge Wynn states
similarly, “this Executive Order is no more than . . . naked invidious discrimination
against Muslims,” ante at 94. These statements flatly mischaracterize an order that
undisputedly contains no facial reference to religion.
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The Supreme Court has repeatedly warned against “judicial psychoanalysis of a
drafter’s heart of hearts.” McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545
U.S. 844, 862 (2005). And consistent with that warning, the Court has never, “in
evaluating the legality of executive action, deferred to comments made by such officials
to the media.” Hamdan v. Rumsfeld, 548 U.S. 557, 623–24 n.52 (2006). The Court’s
reluctance to consider statements made in the course of campaigning derives from good
sense and a recognition of the pitfalls that would accompany such an inquiry.
Because of their nature, campaign statements are unbounded resources by which
to find intent of various kinds. They are often short-hand for larger ideas; they are
explained, modified, retracted, and amplified as they are repeated and as new
circumstances and arguments arise. And they are often ambiguous. A court applying the
majority’s new rule could thus have free reign to select whichever expression of a
candidate’s developing ideas best supports its desired conclusion.
Moreover, opening the door to the use of campaign statements to inform the text
of later executive orders has no rational limit. If a court, dredging through the myriad
remarks of a campaign, fails to find material to produce the desired outcome, what stops
it from probing deeper to find statements from a previous campaign, or from a previous
business conference, or from college?
And how would use of such statements take into account intervening acts, events,
and influences? When a candidate wins the election to the presidency, he takes an oath
of office to abide by the Constitution and the laws of the Nation; he appoints officers of
the government and retains advisors, usually specialized in their field. Is there not the
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possibility that a candidate might have different intentions than a President in office?
And after taking office, a President faces new external events that may prompt new
approaches altogether. How would a court assess the effect of these intervening events
on presidential intent without conducting judicial psychoanalysis?
The foibles of such a rule are unbounded and its adoption would have serious
implications for the democratic process. As Judge Kozinski said well when he wrote
about the Ninth Circuit’s use of the same campaign statements:
Even if a politician’s past statements were utterly clear and consistent,
using them to yield a specific constitutional violation would suggest an
absurd result — namely, that the policies of an elected official can be
forever held hostage by the unguarded declarations of a candidate. If a
court were to find that campaign skeletons prevented an official from
pursuing otherwise constitutional policies, what could he do to cure the
defect? Could he stand up and recant it all (“just kidding!”) and try again?
Or would we also need a court to police the sincerity of that mea culpa —
piercing into the public official’s “heart of hearts” to divine whether he
really changed his mind, just as the Supreme Court has warned us not to?
See McCreary, 545 U.S. at 862.
Washington v. Trump, No. 17-35105 (9th Cir. March 17, 2017) (Kozinski, J., dissenting
from the denial of reconsideration en banc).
The danger of the majority’s new rule is that it will enable any court to justify its
decision to strike down any executive action with which it disagrees. It need only find
one statement that contradicts the stated reasons for a subsequent executive action and
thereby pronounce that reasons for the executive action are a pretext. This, I submit, is
precisely what the majority opinion does.
Moreover, the unbounded nature of the majority’s new rule will leave the
President and his Administration in a clearly untenable position for future action. It is
170
undeniable that President Trump will need to engage in foreign policy regarding
majority-Muslim nations, including those designated by the Order. And yet the majority
now suggests that at least some of those future actions might also be subject to the same
challenges upheld today. Presumably, the majority does not intend entirely to stop the
President from creating policies that address these nations, but it gives the President no
guidelines for “cleansing” himself of the “taint” they have purportedly identified.
Finally, the new rule would by itself chill political speech directed at voters
seeking to make their election decision. It is hard to imagine a greater or more direct
chill on campaign speech than the knowledge that any statement made may be used later
to support the inference of some nefarious intent when official actions are inevitably
subjected to legal challenges. Indeed, the majority does not even deny that it employs an
approach that will limit communication to voters. Instead, it simply opines remarkably
that such chilling is “a welcome restraint.” Ante at 68.
The Supreme Court surely will shudder at the majority’s adoption of this new rule
that has no limits or bounds — one that transforms the majority’s criticisms of a
candidate’s various campaign statements into a constitutional violation.
D
Finally, it is readily apparent that the plaintiffs’ attempt to use campaign
statements to transform a facially neutral executive action into an Establishment Clause
violation would, in any event, be unlikely to succeed on the merits.
The thrust of the plaintiffs’ argument, which the majority adopts, is that the Order
violates the Establishment Clause’s requirement of religious neutrality because it was
171
enacted “primarily for the purpose of targeting Muslims.” To be sure, courts must ensure
that government action is indeed motivated by a secular, rather than religious, purpose.
See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). And while the government’s “stated
reasons” for an action “will generally get deference,” it is true that “the secular purpose
required has to be genuine, not a sham, and not merely secondary to a religious
objective.” McCreary, 545 U.S. at 864. “The eyes that look to purpose belong to an
‘objective observer,’ one who takes account of the traditional external signs that show up
in the ‘text, legislative history, and implementation of the statute,’ or comparable official
act.” Id. at 862 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)).
But these generic standards are all of the doctrinal support that the plaintiffs and
the majority can muster. For one, the Supreme Court has never applied the Establishment
Clause to matters of national security and foreign affairs. And of the few government
actions that the Supreme Court has invalidated based on a religious purpose, McCreary,
545 U.S. at 859 (remarking that the Court had “found government action motivated by an
illegitimate purpose only four times since Lemon”), each is manifestly distinguishable
from the Order here.
First, for all of the weight that the majority places on McCreary, it ignores that the
Court there confronted a facially religious government action — the display of the Ten
Commandments in two county courthouses. The Court in McCreary thus began with a
presumption that the display was intended to promote religion. See 545 U.S. at 867–69.
When it examined the legislative history surrounding the displays, it did so only to reject
the government’s attempt to overcome that presumption with a secular, pedagogical
172
purpose — a purpose that the Court declined to accept because it was adopted “only as a
litigating position,” id. at 871, “without a new resolution or repeal of the old [and
expressly religious] one,” id. at 870; see also Sch. Dist. of Abington Twp. v. Schempp,
374 U.S. 203, 223–24 (1963) (holding that schools’ policy of required Bible study and
recitation of the Lord’s Prayer violated Establishment Clause). In stark contrast, the
district court here concluded, and the majority agrees, that nothing on the face of the
Executive Order speaks to religion. Ante at 59–60. Under McCreary, we should
therefore begin with the presumption that the Order is neutral toward religion.
To be sure, the Supreme Court in “unusual cases” will find a religious purpose
even where the government action contains no facial reference to religion. McCreary,
545 U.S. at 865. The majority, quoting selectively from these cases, invokes them to
justify its searching inquiry into whether the Order’s secular justifications were
subordinate to a religious purpose that it has gleaned only from extrinsic statements. The
majority’s approach, however, in no way accords with what the Court actually did in
those cases. In each case, the Court found the government action inexplicable but for a
religious purpose, and it looked to extrinsic evidence only to confirm its suspicion,
prompted by the face of the action, that it had religious origins. See Santa Fe, 530 U.S. at315–16 (invalidating school policy of allowing student-led “invocation” before football
games because the policy’s language and context showed that religious prayer was the
“preferred message”); Edwards v. Aguillard, 482 U.S. 578, 585–86 (1987) (invalidating
state law that required creationism to be taught with evolution because the law did
nothing to accomplish its stated secular purpose of “protect[ing] academic freedom”);
173
Wallace v. Jaffree, 472 U.S. 38, 56–61 (1985) (invalidating state law that provided for
one minute of “meditation or voluntary prayer” at the start of each school day because
bill’s sponsor stated that sole purpose was to encourage school prayer and prior statute
already provided for student meditation).
The Executive Order in this case fits nowhere within this line. It is framed and
enforced without reference to religion, and the government’s proffered national security
justifications, which are consistent with the stated purposes of the Order, withstand
scrutiny. Conflicting extrinsic statements made prior to the Order’s enactment surely
cannot supplant its facially legitimate national security purpose. See McCreary, 545 U.S.
at 865 (“[T]he Court often . . . accept[s] governmental statements of purpose, in keeping
with the respect owed in the first instance to such official claims”); Mueller v. Allen, 463
U.S. 388, 394–95 (1983) (referring to the Court’s “reluctance to attribute unconstitutional
motives to the states, particularly when a plausible secular purpose for the state’s
program may be discerned from the face of the statute”). Indeed, to hold otherwise
would fly in the face of the Court’s decisions upholding government actions with
connections to religion far more obvious than those here. See Lynch v. Donnelly, 465
U.S. 668, 681 (1984) (city’s inclusion of crèche in Christmas display justified by
“legitimate secular purposes,” namely “to celebrate the Holiday and to depict the origins
of that Holiday”); McGowan v. Maryland, 366 U.S. 420, 444–46 (1961) (upholding
state’s requirement that businesses be closed on Sundays because, while Sunday laws had
obvious religious origins, their religious purpose had dissipated in favor of a secular one).
174
The decision in Board of Education of Kiryas Joel Village School District v.
Grumet, 512 U.S. 687 (1994), on which the majority also relies, is similarly inapposite.
The state law at issue in that case “carved out” a new school district that included only “a
religious enclave of Satmar Hasidism, practitioners of a strict form of Judaism.” Id. at
690. In Kiryas Joel, however, the government did not dispute that the lines were drawn
with religion in mind. Id. at 699. Rather than searching for extrinsic statements as
evidence of a religious purpose, the Court took the government at its word and treated as
corroborative of its religious purpose the fact that “the district’s creation ran uniquely
counter to state practice.” Id. at 702; see also id. at 729 (Kennedy, J., concurring in the
judgment) (“There is no serious question that the legislature configured the school
district, with purpose and precision, along a religious line. This explicit religious
gerrymandering violates the First Amendment Establishment Clause” (emphasis added)).
The government here, by contrast, provides ample nonreligious justification for
the Order and actively contests that it has any religious purpose. Far from running
“counter” to typical national security practice, each of the Order’s six affected countries
was previously designated as “a state sponsor of terrorism, has been significantly
compromised by terrorist organizations, or contains active conflict zones.” Order § 1(d).
And an Order that affects all nationals of six countries, irrespective of their religion, is
not so precisely hewn to religious lines that we can infer, based on its operation alone, a
predominantly religious purpose.
175
Undeterred, the majority, pursuing its objective despite the costs, opens Lemon’s
already controversial purpose inquiry even wider. 4 It engages in its own review of the
national security justifications supporting the Order and concludes that protecting
national security could not be the President’s “primary purpose.” As evidence, the
majority points to the President’s level of consultation with national security agencies
before issuing the Order; the content of internal Department of Homeland Security
reports; the comments of former national security officials made in an amicus brief; and
its own assessment of the national security threats described in the Order. Ante at 60–62.
This intense factual scrutiny of a facially legitimate purpose, of course, flies in the
face of Mandel, Fiallo, and Din. But even within traditional Establishment Clause
doctrine, it is an unprecedented overreach. It goes far beyond the Court’s inquiry in
McCreary, where the government offered a secular “litigating position” for a facially
religious action, 545 U.S. at 871, or in Wallace, where the government’s proffered
secular purpose for a statute that provided for “meditation or voluntary prayer” was
belied by the fact that a previous law already provided for a minute of meditation, 472
4
While there is no question that it binds us, Lemon’s test, and particularly its
inquiry into government purpose, has repeatedly been criticized as open-ended and
manipulable. See McCreary, 545 U.S. at 902 (Scalia, J., dissenting) (“By shifting the
focus of Lemon’s purpose prong from the search for a genuine, secular motivation to the
hunt for a predominantly religious purpose, the Court converts what has in the past been a
fairly limited inquiry into a rigorous review of the full record”); see also, e.g., Santa Fe,
530 U.S. at 319–20 (Rehnquist, C.J., dissenting); Kiryas Joel, 512 U.S. at 720(O’Connor, J., concurring in part and concurring in the judgment); Cty. of Allegheny v.
Am. Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573, 655–57 (1989)
(Kennedy, J., concurring in the judgment in part and dissenting in part). Should the
majority not be wary of jumping when on thin ice?
176
U.S. at 59–61 (finding that the bill’s “sole purpose” was religious). In those cases, the
Court concluded that the government’s secular purpose did not hold up even on its own
terms — that is, even accepting the soundness of the secular purpose, undisputed
historical facts made clear that the secular purpose was not primary. The Court
emphatically did not, however, question the factual bases underlying the government’s
proffered secular purpose.
The majority’s intense factual inquiry is particularly inappropriate where the
government’s secular purpose is related to national security — a subject, as the majority
recognizes, on which we owe the executive significant deference. See Holder v.
Humanitarian Law Project, 561 U.S. 1, 33–34 (2010) (explaining that, where the
executive had concluded that material support to terrorist organizations “will ultimately
inure to the benefit of their criminal, terrorist functions,” “[t]hat evaluation of the facts by
the Executive . . . is entitled to deference” because it “implicates sensitive and weighty
interests of national security and foreign affairs”).
Unless corrected by the Supreme Court, the majority’s new approach, which is
unsupported by any Supreme Court case, will become a sword for plaintiffs to challenge
facially neutral government actions, particularly those affecting regions dominated by a
single religion. Government officials will avoid speaking about religion, even privately,
lest a court discover statements that could be used to ascribe a religious motivation to
their future actions. And, in the more immediate future, our courts will be faced with the
unworkable task of determining when this President’s supposed religious motive has
sufficiently dissipated so as to allow executive action toward these or other majority-
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Muslim countries. The Establishment Clause demands none of these unfortunate and
unprecedented results.
* * *
For all of the foregoing reasons, I would reject the plaintiffs’ and the district
court’s Establishment Clause arguments and vacate the district court’s injunction.
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SHEDD, Circuit Judge, with whom Judge NIEMEYER and Judge AGEE join,
dissenting 1:
National security is a complex business with potentially grave consequences for
our country. Recognizing this fact, the Supreme Court has observed that “it is obvious
and unarguable that no governmental interest is more compelling than the security of the
Nation.” Haig v. Agee, 453 U.S. 280, 307 (1981). 2 This observation is especially true in
today’s world, where we face threats from radical terrorists who seek to cross our borders
for the purpose of harming us and destroying our way of life. Although we often are
quick to forget the fact, “the real risks, the real threats, of terrorist attacks are constant
and not likely soon to abate,” Boumediene v. Bush, 553 U.S. 723, 793 (2008); therefore,
“the Government’s interest in combating terrorism is an urgent objective of the highest
order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010). Given the multitude
of critical factors involved in protecting national security, including the delicacy of
foreign relations and the worldwide intelligence information that is constantly generated,
combined with the ever-changing threatening circumstances, “questions of national
security . . . do not admit of easy answers, especially not as products of the necessarily
limited analysis undertaken in a single case,” Lebron v. Rumsfeld, 670 F.3d 540, 549 (4th
Cir. 2012), and “they are and should be undertaken only by those directly responsible to
1
Though I fully join Judge Niemeyer’s and Judge Agee’s well-reasoned dissenting
opinions, I offer the following additional comments to explain why I believe the district
court further abused its discretion in entering the preliminary injunction. Judge Niemeyer
and Judge Agee have authorized me to state that they join in this dissenting opinion.
2
I have omitted internal quotation marks, alterations, and citations here and
throughout this opinion, unless otherwise noted.
179
the people whose welfare they advance or imperil,” Chicago & S. Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 111 (1948).
Every President has the “constitutional responsibility for the security of the Nation
as the Chief Executive and as Commander in Chief of our Armed forces.” El-Masri v.
United States, 479 F.3d 296, 304 (4th Cir. 2007). In this role, a President and his national
security advisors (unlike federal judges at all levels, lawyers, and commentators) have
constant access to information “that may describe new and serious threats to our Nation
and its people.” Boumediene, 553 U.S. at 797. For these reasons and more, “courts
traditionally have been reluctant to intrude upon the authority of the Executive in military
and national security affairs.” Dept. of Navy v. Egan, 484 U.S. 518, 530 (1988).
This case involves the President’s attempt to impose a temporary pause on the
entry of nationals from six countries that indisputably present national security concerns.
“It is pertinent to observe that any policy toward aliens is vitally and intricately
interwoven with contemporaneous policies in regard to the conduct of foreign relations,
the war power, and the maintenance of a republican form of government. Such matters
are so exclusively entrusted to the political branches of government as to be largely
immune from judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. 580,
589 (1952). Along this line, the Supreme Court has noted that “the Government’s interest
in preventing the entry of unwanted persons and effects is at its zenith at the international
border,” United States v. Flores-Montano, 541 U.S. 149, 152 (2004), and has explained
that the President is not obligated to disclose his reasons “for deeming nationals of a
particular country a special threat . . . and even if [he] did disclose them a court would be
180
ill equipped to determine their authenticity and utterly unable to assess their adequacy,”
Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999).
One thing is certain: to whatever extent it is permissible to examine the President’s
national security decision in this case, where the President has acted “pursuant to an
express or implied authorization from Congress,” the President’s decision is entitled to
“the strongest of presumptions and the widest latitude of judicial interpretation, and the
burden of persuasion would rest heavily upon any who might attack it.” Dames & Moore
v. Regan, 453 U.S. 654, 668 (1981). This is especially true when, as here, plaintiffs seek
preliminary injunctive relief to stop the President from executing a national security
policy, for in even the most routine cases, which this certainly is not, a preliminary
injunction “is a drastic and extraordinary remedy, which should not be granted as a
matter of course.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010).
The obvious rationale underlying these important principles has been discussed
many times by the Supreme Court, this Court, and others, but the district court totally
failed to respect them. Rather than giving any deference to the President (or his national
security advisors) regarding his national security assessment, or imposing a heavy burden
on the plaintiffs to overcome the President’s decision, or showing any sense of restraint
in wielding the extraordinary remedy of injunctive relief, the district court simply cast
aside the President’s decision as nothing more than a sham based on its own ideas
concerning the wisdom of the Executive Order. In doing so, the district court made the
extraordinary finding - based on a preliminary evidentiary record - that the President
exercised his otherwise lawful authority to effect the temporary pause primarily because
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he bears animus towards Muslims and wants to impose a “Muslim ban.” Remarkably, the
district court made this finding while also acknowledging that the Executive Order is
facially neutral, that there are heightened security risks with the countries listed in the
Executive Order, and that national security interests would be served by the travel pause.
The shortcomings inherent in the district court’s fact-finding are obvious. It is
primarily based on the district court’s selectively negative interpretation of political
campaign statements made before the President swore his oath of office, 3 its acceptance
of the national security assessment of former government officials (many of whom
openly oppose this President), its failure to account for the national security assessment
of the current Attorney General and Secretary of Homeland Security, its misplaced
conclusion regarding the President’s decision not to submit the Executive Order to the
Executive bureaucracy for “inter-agency review,” and the purported novelty of the
temporary travel pause. Moreover, despite its express recognition of the dangers posed by
the designated countries and the national security interests served by the temporary travel
3
Ironically, courts are sensitive in defending their own integrity and often use the
judicial oath of office as a shield against claims of bias. See generally Caperton v. A.T.
Massey Coal Co., 556 U.S. 868, 891 (2009) (Roberts, C.J., dissenting) (“There is a
presumption of honesty and integrity in those serving as adjudicators. All judges take an
oath to uphold the Constitution and apply the law impartially, and we trust that they will
live up to this promise.”). Certainly, the President, who takes a similar oath of office,
should be accorded the same trust. See, e.g., N.L.R.B. v. Enterprise Leas. Co. SE, LLC,
722 F.3d 609, 671 (4th Cir. 2013) (Diaz, J., concurring in part and dissenting in part)
(“The majority also gives short shrift to the fact that the President too swears an oath to
uphold the Constitution, and that when he acts under its express authority, his actions
should be accorded a presumption of constitutionality.”).
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pause, the district court - with no access to intelligence information 4 - criticized the
President for failing to identify any instances of individuals who came from the
designated countries having engaged in terrorist activity in the United States, faulted the
President for not explaining why the temporary travel pause is the necessary response to
the existing risks, and ultimately found that the President failed to prove that national
security cannot be maintained without the temporary travel pause. As if all of this is not
enough, the President’s supposed goal of “banning Muslims” from the United States is
not remotely served by the temporary travel pause, a fact that makes the district court’s
factual finding even more dubious. 5
The district court’s questionable fact-finding is sufficient (among other reasons) to
vacate the injunction, but there is ultimately a more obvious fatal flaw in the injunction
order: the court’s complete failure to actually account for the public interest. In addition
to the general restraint courts must show when considering injunctive relief, courts
“should be particularly cautious when contemplating relief that implicates public
4
In Waterman S.S. Corp., 333 U.S. at 111, the Court made the following apt
observation: “The President, both as Commander-in-Chief and as the Nation’s organ for
foreign affairs, has available intelligence services whose reports neither are nor ought to
be published to the world. It would be intolerable that courts, without the relevant
information, should review and perhaps nullify actions of the Executive taken on
information properly held secret.”
5
The limited temporal and geographical scope of the Executive Order, coupled
with the designated categorical exclusions and case-by-case waiver process, strongly
supports the President’s stated national security rationale rather than the district court’s
bias finding. Even without those exclusions and waivers, the temporary travel pause
would only potentially affect approximately 10% of Muslims worldwide.
183
interests.” Salazar v. Buono, 559 U.S. 700, 714 (2010). 6 Although the public interest
generally favors the protection of constitutional rights, that interest must sometimes yield
to the public interest in national security, see, e.g., Defense Distrib. v. U.S. Dept. of State,
838 F.3d 451, 458-60 (5th Cir. 2016), because “unless a society has the capability and
will to defend itself from the aggressions of others, constitutional protections of any sort
have little meaning,” Wayte v. United States, 470 U.S. 598, 612 (1985). This is such a
case.
The circumstances of this case are similar in material respects to those presented
in Winter, and a straightforward application of that case warrants reversal here. The
Winter plaintiffs complained that the United States Navy’s sonar-training program
harmed marine mammals and that the Navy should have prepared an environmental
impact statement before conducting certain training exercises. The district court agreed
and preliminarily enjoined the Navy from using sonar in certain circumstances during
training exercises. The Ninth Circuit affirmed the injunction, but the Court reversed.
Applying the standard four-part preliminary injunction test, the Court acknowledged the
importance of plaintiff’s ecological, scientific, and recreational interests in marine
mammals and accepted for purposes of discussion that they had shown irreparable injury
from the Navy’s training exercises. However, the Court concluded that these factors were
“outweighed by the public interest and the Navy’s interest in effective, realistic training
6
To obtain a preliminary injunction, a plaintiff must establish: (1) he is likely to
succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of
preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in
the public interest. Winter v. Natural Res. Def. Counc., Inc., 555 U.S. 7, 20 (2008).
184
of its sailors.” Id. at 23. In the Court’s view: “A proper consideration of these factors
alone require[d] denial of the requested injunctive relief.” Id.The Court explained that the lower courts “significantly understated the burden the
preliminary injunction would impose on the Navy’s ability to conduct realistic training
exercises, and the injunction’s consequent adverse impact on the public interest in
national defense.” Id. at 24. In reaching this conclusion, the Court noted that the case
involved complex professional military decisions regarding training and control of a
military force, to which “great deference” is ordinarily given, id., and it observed that the
record contained declarations from senior Navy officials that underscored the threat
posed by enemy submarines and the need for extensive sonar training to counter the
threat, as well as a declaration from the President that training with sonar was essential to
national security. The Court emphasized that the lower courts “failed properly to defer”
to senior Navy officers’ judgment about the effect that a preliminary injunction would
have on the effectiveness of the training. Id. at 27. Additionally, the Court pointed out
that “despite the importance of assessing the balance of equities and the public interest in
determining whether to grant a preliminary injunction, the District Court addressed these
considerations in only a cursory fashion.” Id. at 26. Ultimately, while acknowledging that
“military interests do not always trump other considerations,” the Court determined that
“the proper determination of where the public interest lies does not strike us as a close
question.” Id.As in Winter, the district court’s public interest analysis misses the mark. Here, the
facially neutral Executive Order explains in detail the President’s underlying reasoning
185
for the temporary travel pause. Additionally, the record contains a joint letter from the
Attorney General and Secretary of Homeland Security in which they detail their concerns
“about weaknesses in our immigration system that pose a risk to our Nation’s security,”
and in which they assert that “it is imperative that we have a temporary pause on the
entry of nationals from certain countries to allow this review to take place – a temporary
pause that will immediately diminish the risk we face from application of our current
vetting and screening programs for individuals seeking entry to the United States from
these countries.” To be sure, the district court found that the President’s alleged bias is
the primary reason for the temporary travel pause, but it found no such bias on the part of
his Cabinet officials. 7 Moreover, the district court acknowledged that national security is
in fact a secondary reason for the temporary travel pause, and it found that the countries
designated in the Executive Order present heightened security risks and that national
security interests would be served by the temporary travel pause.
Despite this record, the district court – with no meaningful analysis - simply
dismissed the public’s interest in national security with the specious conclusion that
“Defendants . . . have not shown, or even asserted, that national security cannot be
maintained without an unprecedented six-country travel ban, a measure that has not been
deemed necessary at any other time in recent history.” I.R.A.P. v. Trump, 2017 Westlaw
7
Similarly, plaintiffs’ counsel admitted during oral argument that he has no basis
to challenge the integrity of the Attorney General and Secretary of Homeland Security.
The apparent good-faith of these officials, which is an inconvenient fact for the plaintiffs,
leads inexorably to the unanswered question of why the district court essentially ignored
or rejected their detailed national security advice to the President.
186
1018235, *17 (D. Md. 2017). As noted, national security is the most compelling of public
interests, and the question of how best to protect public safety in this area does not, as the
district court implies, boil down to a least-restrictive means test, Padilla v. Hanft, 423
F.3d 386, 395 (4th Cir. 2005) (“We believe that the district court ultimately accorded
insufficient deference to that determination, effectively imposing upon the President the
equivalent of a least-restrictive-means test. To subject to such exacting scrutiny the
President’s determination that criminal prosecution would not adequately protect the
Nation’s security at a very minimum fails to accord the President the deference that is his
when he acts pursuant to a broad delegation of authority from Congress.”), or require a
danger that satisfies the court’s “independent foreign policy analysis,” Regan v. Wald,
468 U.S. 222, 242 (1984). Therefore, the relevant point is not whether the temporary
travel pause is the only way, or even the best way, to protect national security. The simple
fact of the matter is that regardless of any ulterior motive one might ascribe to the
President, the record still conclusively establishes that the temporary travel pause will in
fact promote an important national security objective.
Undoubtedly, protection of constitutional rights is important, but there are often
times in the federal system when constitutional rights must yield for the public interest.
As we have explained, for example, in applying the state secrets doctrine, a plaintiff with
a plausibly viable constitutional claim can be barred from pursuing it “not through any
fault of his own, but because his personal interest in pursuing his civil claim is
subordinated to the collective interest in national security.” El-Masri, 479 F.3d at 313. In
my view, the very serious national security interest served by the temporary travel pause
187
(as determined by those who are duly empowered to make the decision and who have
access to current intelligence information) greatly outweighs the alleged temporary and
relatively minor harm that will befall these few plaintiffs. The district court abused its
discretion by failing to strike this balance. See, e.g., Sarsour v. Trump, 2017 Westlaw
1113305, *15 (E.D.Va. 2017) (“Based on the record now before the Court, the parties’
respective interests described above, the subject matter of EO–2, and the protections to
the public that EO–2 is intended to provide, Plaintiffs have not established that the public
interest favors issuance of immediate relief in this action.”).
Today’s decision may be celebrated by some as a victory for individual civil rights
and justice, and by others as a political defeat for this President. Yet, it is shortsighted to
ignore the larger ramifications of this decision. Regrettably, at the end of the day, the real
losers in this case are the millions of individual Americans whose security is threatened
on a daily basis by those who seek to do us harm. Even if the district court’s instinct is
correct and no tangible harm directly results from its order enjoining the President from
attempting to protect American citizens, the injunction prohibits the government from
addressing a serious risk identified by the Attorney General and Homeland Security
Secretary; therefore, the security of our nation is indisputably lessened as a result of the
injunction. Moreover, the President and his national security advisors (and perhaps future
188
Presidents) will be seriously hampered in their ability to exercise their constitutional duty
to protect this country. 8
8
At oral argument, several judges (including myself) questioned when, if ever, the
President could free himself from the stigma of bias that the district court has enshrined
by its preliminary “factfinding.” Notably, no one has provided a satisfactory response.
189
AGEE, Circuit Judge, with whom Judge NIEMEYER and Judge SHEDD join,
dissenting:
In their haste to reach the merits of the plaintiffs’ Establishment Clause claim, my
colleagues in the majority neglect to follow the longstanding and well-defined
requirements of Article III of the United States Constitution. They err, as did the district
court, in holding that the plaintiffs had standing to bring an Establishment Clause claim.
For that reason, I respectfully dissent from the majority’s decision to uphold the district
court’s preliminary injunction. The plaintiffs do not have standing to bring the current
action. 1
I.
A.
Article III limits the federal judiciary’s authority to adjudicate only “cases” and
“controversies.” U.S. Const. art. III, § 2. “[S]tanding is an integral component of the
case or controversy requirement.” CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d
46, 52 (4th Cir. 2011); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)
(“[T]he core component of standing is an essential and unchanging part of the case-or-
controversy requirement of Article III.”). 2 A plaintiff must satisfy three elements to
1
I join the well-written dissents of Judge Niemeyer and Judge Shedd in full. But,
for the reasons stated herein, I would find it unnecessary to reach the merits of the
plaintiffs’ Establishment Clause claim.
2
I have omitted internal alterations, citations, and quotation marks here and
throughout this dissent, unless otherwise noted.
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establish standing: (1) “the plaintiff must have suffered an injury in fact—an invasion of
a legally protected interest which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical”; (2) “there must be a causal connection
between the injury and the conduct complained of—the injury has to be fairly traceable to
the challenged action of the defendant, and not the result of the independent action of
some third party not before the court”; and (3) “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favorable decision.” Defenders of
Wildlife, 504 U.S. at 560–61. “The party invoking federal jurisdiction bears the burden
of establishing these elements.” Id. at 561.
Due to the difficulty of determining injury in Establishment Clause cases, “rules of
standing recognize that noneconomic or intangible injury may suffice to make an
Establishment Clause claim justiciable.” Suhre v. Haywood Cty., 131 F.3d 1083, 1086
(4th Cir. 1997); see also Moss v. Spartanburg Cty. Sch. Dist. Seven, 683 F.3d 599, 605
(4th Cir. 2012) (“Many of the harms that Establishment Clause plaintiffs suffer are
spiritual and value-laden, rather than tangible and economic.”). However, “a mere
abstract objection to unconstitutional conduct is not sufficient to confer standing.” Suhre,
131 F.3d at 1086; see also Moss, 683 F.3d at 605 (“Nonetheless, we must guard against
efforts to use this principle to derive standing from the bare fact of disagreement with a
government policy, even passionate disagreement premised on Establishment Clause
principles. Such disagreement, taken alone, is not sufficient to prove spiritual injury.”).
For example, “a citizen of Omaha, Nebraska who finds a religious symbol in the
Haywood County Courthouse [in North Carolina] to be offensive in the abstract would
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not have standing to challenge it. The injury to our hypothetical Omaha plaintiff partakes
of a generalized grievance, based on nothing more than each citizen’s shared individuated
right to a government that shall make no law respecting the establishment of religion.”
Suhre, 131 F.3d at 1086; accord Defenders of Wildlife, 504 U.S. at 575 (“[T]o entitle a
private individual to invoke the judicial power to determine the validity of executive or
legislative action he must show that he has sustained or is immediately in danger of
sustaining a direct injury as the result of that action and it is not sufficient that he has
merely a general interest common to all members of the public.”). Conversely, “direct
contact with an unwelcome religious exercise or display works a personal injury distinct
from and in addition to each citizen’s general grievance against unconstitutional
government conduct.” Suhre, 131 F.3d at 1086.
B.
The district court determined that three of the individual plaintiffs (Meteab, John
Doe #1, and John Doe #3) had sufficiently pleaded that they had suffered stigmatization
due to the Executive Order. See J.A. 780 (finding that the plaintiffs claimed “the anti-
Muslim animus underlying the Second Executive Order inflicts stigmatizing injuries on
them all” (emphasis added)). Because Section 2(c) also allegedly prevents the family
members of these plaintiffs from entering the country, the district court held that they had
asserted injuries sufficient to confer standing to pursue their Establishment Clause claim.
Doe #1 is a lawful permanent resident and “non-practicing Muslim[].” J.A. 213,
305. His wife, also a non-practicing Muslim and Iranian national, has applied for an
immigrant visa. She is currently awaiting an embassy interview, a condition precedent to
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the determination of whether to grant a visa. See 22 C.F.R. § 42.62(b) (“Every alien
executing an immigrant visa application must be interviewed by a consular officer who
shall determine on the basis of the applicant’s representations and the visa application
and other relevant documentation—(1) The proper immigrant classification, if any, of the
visa applicant, and (2) The applicant’s eligibility to receive a visa.”). Doe #1 alleges that
the Executive Order has caused him and his wife to experience “significant fear, anxiety
and insecurity . . . regarding their future.” J.A. 246. He argues that because he is afraid
that he will not be allowed to reenter the United States if he travels to Iran, Section 2(c)
“forces [him] to choose between [his] career and being with [his] wife.” J.A. 306. Doe
#1 maintains that “the anti-Muslim views that are driving the Executive Order, as well as
the Order itself, have caused [him] significant stress and anxiety.” J.A. 306. He is
allegedly concerned for his safety.
Like Doe #1, Doe #3 is a lawful permanent resident, although nothing in the
record indicates his religious preference. 3 In any event, Doe #3 applied for an immigrant
visa on behalf of his wife, an Iranian national. In May 2016, the United States Embassy
“informed [her] that her documentation was complete and she needed to wait for
administrative processing, but that she should be able to join her husband in two to three
months.” J.A. 246. With his wife in Iran, Doe #3 maintains that “[t]heir continued
separation has placed extraordinary stress on John Doe #3 and his wife, and their
3
The pleadings make only one religious reference with respect to Doe #3: “The
anti-Muslim attitudes that are driving this Executive Order have caused me stress and
anxiety and made me question whether I even belong in this country despite everything I
have sacrificed and invested in making a life here.” J.A. 310.
193
relationship.” J.A. 247. He “feel[s] as though they’ve been unable to start their lives
together because of the delays and uncertainty caused by the Executive Order.” J.A. 247.
Doe #3 asserts that he and his wife “are being torn apart by this situation and the
uncertainty and delay.” J.A. 310. He believes that the anti-Muslim message of the
Executive Order has caused him stress and anxiety and to feel like an outsider.
Meteab is also a lawful permanent resident and Muslim. His wife and children are
here in the United States. However, Meteab has three brothers who wish to resettle in
North America as refugees. Two of the three have received approval for resettlement in
the United States but have not yet obtained travel documents. The remaining brother has
been approved for resettlement in Canada. Meteab contends that, as a result of the
Executive Order, he “and his wife have experienced anti-Muslim sentiment and felt very
uncomfortable and insecure in their community, causing them acute mental stress.” J.A.
250. The couple “ha[s] experienced hostility in public, with people staring at Mr.
Meteab’s wife, who wears a hijab, and refusing to stop for them at crosswalks.” J.A. 250.
C.
The district court held that, “where the [allegedly anti-Muslim] Executive Order
was issued by the federal government, and the three Individual Plaintiffs have family
members who are directly and adversely affected in that they are barred from entry to the
United States as a result of the terms of the Executive Orders, these Individual Plaintiffs
have alleged a personal injury as a consequence of the alleged Establishment Clause
violation.” J.A. 787. However, as the record reflects, the district court clearly erred in
finding that Meteab had standing to challenge Section 2(c) of the Executive Order.
194
Meteab’s brothers are refugees, and Section 2(c) does not apply to refugees. The district
court recognized in its opinion that “[t]he Plaintiffs’ Establishment Clause . . . arguments
focused primarily on the travel ban for citizens of the six Designated Countries in Section
2(c) of the Second Executive Order.” J.A. 809. The court elaborated that the plaintiffs
had “not sufficiently develop[ed] . . . argument[s relating to refugees] to warrant an
injunction on those sections at this time.” J.A. 810. Therefore, Meteab cannot base
standing to challenge Section 2(c) on any “prolonged separation” from his refugee
brothers, who are covered by a different section of the Executive Order. See
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[A] plaintiff must
demonstrate standing for each claim he seeks to press.”); Allen v. Wright, 468 U.S. 737,
752 (1984) (“Typically, however, the standing inquiry requires careful judicial
examination of a complaint’s allegations to ascertain whether the particular plaintiff is
entitled to an adjudication of the particular claims asserted.”), abrogated on other
grounds by Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. ___, 134 S.
Ct. 1377 (2014). Thus, Meteab can show Establishment Clause standing only if his
alleged stigmatization is a cognizable injury for standing purposes.
As for Doe #3, his wife was granted a visa during the pendency of this appeal, so
he, too, is left with only stigma to make his Establishment Clause claim of standing. For
the reasons stated below, such a stigma claim alone is insufficient to confer standing
under the record in this case.
Perhaps recognizing these deficits, the majority bases its affirmation of the district
court’s standing determination only on Doe #1. But Doe #1 does not have standing either
195
because the stigma that he alleges to have suffered and the potential denial of a visa to his
wife are two distinct harms, neither of which meet basic standing requirements. Setting
aside Doe #1’s allegation that he experienced stigmatization himself, the imagined future
denial of a visa to his wife is simply too vague and speculative to meet the constitutional
standard of a concrete and “actual or imminent, not conjectural or hypothetical” injury.
Defenders of Wildlife, 504 U.S. at 560. The majority’s conception of “injury-in-fact” by
Doe #1 is conjectural and hypothetical; he had no reasonable expectation that his wife
would join him in the United States at any particular time either prior to the drafting of
the Executive Order or at any time during the suspension period.
1.
The plaintiffs’ pleadings show that their alleged injuries consist solely of their
personal perception of stigmatization. In the complaint, they allege, “The March 6 Order
also contains language that associates Muslims with violence, terrorism, bigotry, and
hatred, inflicting stigmatic and dignitary harms.” J.A. 207 (emphasis added). Despite
the majority’s holding, the stigma that plaintiffs claim to have suffered is not a
cognizable injury because it is simply a subjective disagreement with a government
action. To allow these plaintiffs to pursue their claims based on an idiosyncratic
projection of stigmatization is to grant every would-be Establishment Clause plaintiff
who develops negative feelings in response to some action by the Government a court
proceeding in which to vent his subjective reactions as a legal claim. See Valley Forge
Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464,
489 (1982) (“Were we to accept respondents’ claim of standing in this case, there would
196
be no principled basis for confining our exception to litigants relying on the
Establishment Clause.”). Indeed, to find standing here is to find standing for not only all
Muslims in America, but any American who may find the Executive Order (or any other
Government action) personally disagreeable, which is “beyond all reason.” See
Defenders of Wildlife, 504 U.S. at 566.
The Supreme Court “ha[s] consistently held that a plaintiff raising only a generally
available grievance about government—claiming only harm to his and every citizen’s
interest in proper application of the Constitution and laws, and seeking relief that no more
directly and tangibly benefits him than it does the public at large—does not state an
Article III case or controversy.” Id. at 573–74; accord Valley Forge, 454 U.S. at 482–83
(stating that the Supreme Court “repeatedly has rejected claims of standing predicated on
the right, possessed by every citizen, to require that the Government be administered
according to law”). The Court has rejected a generalized finding of standing based on
“the need for an available plaintiff, without whom the Establishment Clause would be
rendered virtually unenforceable by the judiciary.” Valley Forge, 454 U.S. at 470. The
plaintiffs here “fail to identify any personal injury suffered by them as a consequence of
the alleged constitutional error, other than the psychological consequence presumably
produced by observation of conduct with which one disagrees.” Id. at 485. The majority
does not provide any principled instruction on how its sweeping standing ruling is
cabined to this particular case, and thus its holding far oversteps the bounds of traditional
judicial authority. See id. at 471 (stating that Article III is a limitation on “judicial
power”); see also Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (“The
197
command to guard jealously and exercise rarely our power to make constitutional
pronouncements requires strictest adherence when matters of great national significance
are at stake.”), abrogated on other grounds by Lexmark, 134 S. Ct. 1377; Defenders of
Wildlife, 504 U.S. at 576 (“Vindicating the public interest (including the public interest in
Government observance of the Constitution and laws) is the function of Congress and the
Chief Executive.”).
The majority relies heavily on two Fourth Circuit cases, Suhre and Moss, but these
cases are inapposite. 4 In Suhre, local officials displayed the Ten Commandments in the
county courthouse where the plaintiff, a resident of the county, often visited. 131 F.3d at1084–85. Suhre, an avowed atheist and serial litigant, took offense to the display and
“aver[red] that contact with the display cause[d] him distress.” Id. at 1085. We
ultimately found that Suhre had alleged a “cognizable injury caused by personal contact
with a public religious display.” Id. at 1090.
In Moss, a school district “adopted a policy allowing public school students to
receive two academic credits for off-campus religious instruction offered by private
educators.” 683 F.3d at 601. The plaintiffs, including two students and their parents,
urged the Court to “adopt a per se rule that students and parents always have standing to
bring suit against policies at their school when they allege a violation of the
Establishment Clause, regardless of whether they allege or can prove personal injury.”
4
Suhre is a religious display case, a type of Establishment Clause claim that
arguably belongs in its own category. See 131 F.3d at 1086 (“Religious display cases are
an even more particularized subclass of Establishment Clause standing jurisprudence.”).
198
Id. at 605. We rejected that argument and held that, although injuries in such cases are
often intangible, plaintiffs must have been “spiritually affronted as a result of direct and
unwelcome contact with an alleged religious establishment within their community.” Id.
Because one student had no “personal exposure” to the policy other than mere awareness
of its existence, we held that the student lacked standing, despite that student “feel[ing]
like an outsider” in the school environment. Id. at 606. However, we found that the
other student had standing to bring a claim because she actually received a solicitation
letter from a religious institution that participated in the school’s program and “changed
[her] conduct in adverse ways as a result of [her] perceived outsider status.” Id. at 607.
In both of these cases, local governments took direct actions in relation to their
constituents in an immediate and concrete way. All residents who entered the courthouse
in Suhre were personally exposed to the display of the Ten Commandments, while the
academic policy in Moss was actually sent to the student. As a consequence, the
plaintiffs in those cases did come into direct contact with the alleged Establishment
Clause violations. 5
In contrast, the Executive Order here applies only to prospective immigrants. The
order’s focus faces outward towards the alien residents of the subject countries, not
5
The out-of-circuit cases on which the majority also relies are likewise inapposite
for the same reasons that distinguish Suhre and Moss. See Awad v. Ziriax, 670 F.3d
1111, 1116, 1122 (10th Cir. 2012) (analyzing a “proposed constitutional amendment that
would prevent Oklahoma state courts from considering or using Sharia law”); Catholic
League for Religious and Civil Rights v. City and Cty. of San Francisco, 624 F.3d 1043,
1048–53 (9th Cir. 2010) (reviewing standing in a case challenging a city resolution that
ordered Catholics in San Francisco to cease discriminating against same-sex couples).
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inward towards persons in the United States like the plaintiffs. That circumstance is in
direct distinction to the religious display in Suhre or the academic policy in Moss.
Section 2(c) of the facially-neutral Executive Order applies only to “nationals of Iran,
Libya, Somalia, Sudan, Syria, and Yemen.” Section 3(b)(i) explicitly exempts “any
lawful permanent resident of the United States,” like the plaintiffs, from the travel
suspension, thus not applying to Does #1 and #3 and Meteab. The majority posits that,
because the policy at issue came from the President himself that somehow
metamorphosizes into the “direct contact” Suhre requires. Majority Op. 39. This distorts
the standing inquiry as the source of the directive is irrelevant. What matters is whether
the plaintiff came into direct contact with the religious establishment. And that is not the
case here simply because the President is the party signing an order.
Despite the majority’s giving short shrift to In re Navy Chaplaincy, 534 F.3d 756(D.C. Cir. 2008), the case is directly on point. There, “[a] group of Protestant Navy
chaplains sued the Navy, alleging that the Navy’s operation of its retirement system
discriminates in favor of Catholic chaplains in violation of the Establishment Clause.”
Id. at 758. 6 The plaintiffs “conceded that the Navy did not deny them any benefits or
opportunities on account of their religion.” Id. at 760. Rather, they maintained “that
other chaplains suffered such discrimination.” Id. The plaintiffs contended that they had
standing because “they ha[d] been subjected to the Navy’s message of religious
6
It is irrelevant that In re Navy Chaplaincy is a favoritism case as opposed to a
condemnation case as alleged here, as they are two sides of the same Establishment
Clause coin.
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preference as a result of the Navy’s running a retirement system that favors Catholic
chaplains.” Id. The D.C. Circuit rejected this argument and found that they did not
“have standing based on their exposure to the Navy’s alleged message of religious
preference.” Id. at 761. Like the Protestant Navy chaplains, the plaintiffs here claim
offense to a message directed at others, who happen to be nationals of other countries.
The plaintiffs’ claims of stress or stigmatization are subjective reactions, not direct
contact with the Executive Order, and amount to disagreements with a government
policy. See Moss, 683 F.3d at 604–05. As a result, the plaintiffs’ claim of injury by way
of stigma is a general grievance, insufficient to confer standing. Suhre, 131 F.3d at
1086. 7
2.
Perhaps recognizing the problems posed by basing standing only on the subjective
feelings of the plaintiffs, the majority also holds that the alleged stigma suffered by Doe
#1, combined with prolonged separation from his wife, is enough to support standing,
thereby creating a kind of “stigma plus” standard. 8 However, the majority’s construct
7
Some of the plaintiffs, including Doe #1, have expressed fear that they will be
denied reentry into the country if they travel to the subject countries to visit their family
while the Executive Order is in effect. This fear is unfounded and contradicted by the
plain terms of the Executive Order. Does #1 and 3 and Meteab are all lawful permanent
residents. Section 3(b)(i) of the Executive Order exempts “any lawful permanent resident
of the United States” from the temporary suspension of entry.
8
In its attempt to distinguish In re Navy Chaplaincy, the majority implicitly holds
that stigma alone is not enough to support standing. The majority states that, “contrary to
the Government’s assertion, all Muslims in the United States do not have standing to
bring this suit. Only those persons who suffer direct, cognizable injuries as a result of
EO-2 have standing to challenge it.” Majority Op. 40 n.11. The majority avers that Doe
(Continued)
201
erroneously conflates Doe #1’s Establishment Clause standing claim with his claim under
the Immigration and Nationality Act (“INA”), which the Supreme Court has prohibited.
See DaimlerChrysler Corp., 547 U.S. at 352 (“[O]ur standing cases confirm that a
plaintiff must demonstrate standing for each claim he seeks to press.”). Plaintiffs are
required to “demonstrate standing separately for each form of relief sought.” Friends of
the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (emphasis
added). The majority haphazardly merges alleged injuries unique to two different claims,
and personal to different people, to manufacture standing. 9
#1 “is feeling the direct, painful effects of the Second Executive Order—both its alleged
message of religious condemnation and the prolonged separation it causes between him
and his wife—in his everyday life.” Id. at 40. The majority is right in that regard—
stigma is not enough.
9
Although not the focus of this dissent, I also would find that Doe #1 does not
have standing to bring an INA claim; he lacks a concrete injury. It is pure speculation
whether Doe #1’s wife will receive a visa. Doe #1 has presented no evidence showing
that his wife is likely to receive a visa, much less when, but for the operation of the
executive order. Or that the executive order would tangibly affect the processing of her
application in any way. See Opening Br. 19–20 (“Likewise, Doe #1’s wife did not have
her visa interview scheduled before the Revoked Order took effect, and had already been
waiting roughly six weeks, making it similarly speculative whether the 90-day pause will
affect her.”); see also The Immigrant Visa Process: Interview, U.S. Dep’t of State,
https://travel.state.gov/content/visas/en/immigrate/immigrant-process/interview.html (last
visited May 23, 2017) (saved as ECF opinion attachment) (stating that, although “[m]ost
appointments are set within 60 days of [the National Visa Center’s] receipt of all
requested documentation[,] . . . we cannot predict when an interview appointment will be
available,” and warning that “[t]here may be a wait of several months for an interview
date to become available” (emphasis added)). Nor has the Government denied the visa
application of Doe #1’s spouse.
Any injury caused by the Executive Order is not redressable because an injunction
will not establish that Doe #1’s wife will receive a visa, as exemplified by her current
status. See The Immigrant Visa Process: Interview, supra (“Based on U.S. law, not
(Continued)
202
The majority reasons that Doe #1 has third-party standing to bring an
Establishment Clause claim. Not so. Plaintiffs do not have standing to allege violations
of the Establishment Clause on behalf of their immigrant relatives. See Whitmore v.
Arkansas, 495 U.S. 149, 161 n.2 (1990) (restating the general rule “that a litigant must
assert his own legal rights and interests, and cannot rest his claim to relief on the legal
rights or interests of third parties”); cf. Defenders of Wildlife, 504 U.S. at 562 (“[W]hen
the plaintiff is not himself the object of the government action or inaction he challenges,
standing is not precluded, but it is ordinarily substantially more difficult to establish.”).
The relatives, in turn, do not have rights of entry or any Establishment Clause rights.
Kerry v. Din, 576 U.S. __, 135 S. Ct. 2128, 2131 (2015) (“But because Berashk is an
unadmitted and nonresident alien, he has no right of entry into the United States, and no
cause of action to press in furtherance of his claim for admission.”); United States v.
Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (suggesting that “the people protected by
the Fourth Amendment, and by the First and Second Amendments, and to whom rights
and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons
who are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community”). Doe #1 is
“seeking to vindicate, not [his] own rights, but the rights of others.” Moss, 683 F.3d at
606.
everyone who applies for a visa will be found eligible to come to the United States.”).
Doe #1 does not have standing under the INA.
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Doe #1 has no right to, or even a reasonable expectation of, a time certain meeting
with his wife in America. His alleged injury is based on a mere conjecture that his wife
will have her embassy interview and obtain a discretionary visa within the ninety-day
suspension period of the Executive Order when the State Department has cautioned, well
before the Executive Order, that it may take an indefinite period to schedule interviews
much less adjudicate visa applications. See The Immigrant Visa Process: Interview,
supra note 9 (stating that, although “[m]ost appointments are set within 60 days of [the
National Visa Center’s] receipt of all requested documentation[,] . . . we cannot predict
when an interview appointment will be available,” and warning that “[t]here may be a
wait of several months for an interview date to become available” (emphasis added)).
Any effect of the Executive Order on that speculative possibility is simply not
determinable and thus fails to meet the constitutional standard of an injury “actual or
imminent, not conjectural or hypothetical.” Defenders of Wildlife, 504 U.S. at 560.
The majority underscores the fragility of its standing hypotheses when it avers,
without any citation to precedent or evidence, that the Executive Order creates harm to
the plaintiffs because “dedicating time and resources to a global review process[, for
which Section 2(c) was designed to facilitate,] will further slow the adjudication of
pending [visa] applications.” Majority Op. 36. Nothing in the record supports this
assertion or ties any nexus to Doe #1 or his spouse. Doe #1 simply fails to carry his
burden as to standing under the standard required by the Supreme Court. No
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constitutionally cognizable “harm” which is “certainly impending” to Doe #1 or to him
via his spouse has been proffered. Defenders of Wildlife, 504 U.S. at 564 n.2. 10
For all these reasons, Doe #1 has no “legally protected interest,” Defenders of
Wildlife, 504 U.S. at 560, and no standing to pursue his Establishment Clause claim. 11
II.
As the plaintiffs lack standing to pursue their cause of action, I respectfully dissent
and would vacate the grant of a preliminary injunction by the district court.
10
Similarly, there is no feasible way to determine, except by pure speculation,
how or whether the Executive Order’s visa waiver process might affect a particular visa
application. Nothing in the record supports the majority’s conclusion that pursuing a
waiver would affect any plaintiff. Rather, the majority has arbitrarily substituted its
conjecture for evidence. The visa waiver process could just as likely allow Doe #1’s wife
to obtain her visa as not during the temporary suspension period.
11
The district court did not determine whether other individual plaintiffs or the
organizational plaintiffs have standing to bring the Establishment Clause claim. That
would be a matter to be considered by the district court in the first instance in any further
proceedings.
205