Response From DOJ's Office of Legal Counsel

1:lnitrd ~tatrs ~rnatr
WASHINGTON, DC 20510
January 30, 2017
The Honorable Sally Yates

Acting Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530
Dear Acting Attorney General Yates,
As members of the Senate Judiciary Committee, we write to express concern about the
Department of Justice's ambiguous response to inquiries about the Department's role in
reviewing the legality of President Trump's recent executive orders and memoranda. On
Friday, the press reported that the Department had "no comment" when asked whether its
Office of Legal Counsel (OLC) had reviewed any of the executive orders issued by the
new Administration to date. In the vast majority of cases, the answer to this question
should be a straightforward "yes."
As you are well aware, the Department of Justice's website states that:
"All executive orders and proclamations proposed to be issued by the President

are reviewed by the Office of Legal Counsel for form and legality, as are various
other matters that require the President's formal approval."
In addition, under Executive Order 11030 on the "preparation, presentation, filing, and
publication of Executive orders and proclamations," a president ·'shall'' submit proposed
executive orders and proclamations to both the Office of Management and Budget and
the Attorney General, who reviews the materials for both '·form and legality."
Several of the executive orders and memoranda issued this past week, including those
relating to deportation priorities and "sanctuary cities," have already been questioned by
local law enforcement officials because of their vagueness, negative impact on public
safety, and potential conflict with legal precedent. One of them has already been stayed
by a Federal court, after causing damage to families around the country and our standing
around the globe.
The American public has the right to know that the White House is following the long-
standing and sensible practice that new mandates affecting their lives and communities
have been deemed legal by the Justice Department. If, on the other hand, the
Administration has chosen to deviate from these well-established norms, the public has
the right to know that, too.
Based on our understanding, the President has issued the executive orders and
th
memoranda listed below since January 20 • Given the scope and significance of many of
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these, we ask that you provide the following information by no later than February 1,
2017:
• Identify which orders and memoranda listed below, or issues subsequent to the
date of this letter, were reviewed by OLC before they were issued and which
were not;
• Advise whether, to your knowledge, Executive Order 11030 remains in effect.
• For orders issued through a process that failed to comply with 1 C.F.R. Part 19,
advise what legal effect, if any, they have;
• Advise whether the procedure followed with respect to the executive orders and
memoranda listed reflects a change of Department policy or practice and describe
what the policy or practice of the Department will be going forward;
• Advise whether OLC has advised the Department of Homeland Security or any
other federal agency on the meaning of any court order staying the President's
January 27, 2017, order related to the entry of certain persons into the United
States; and
• Advise whether OLC has advised the Department of Homeland Security or any
other federal agency with respect to the legality of failing to comply with court
orders related to that executive action.
We need an independent Department of Justice to serve as a bulwark against rash and

illegal executive actions and flagrant disrespect of our judicial system. It is our hope. and
expectation, that the Department will continue to serve this role.
Executive Orders:
1. Executive Order: Reducing Regulation and Controlling Regulatory Costs (January

30, 2017)
2. Executive Order: Protecting the Nation from Foreign Terrorist Entry into the
United States. (January 27, 2017)
3. Executive Order: Border Security and Immigration Enforcement
Improvements (January 25, 2017)
4. Executive Order: Enhancing Public Safety in the Interior of the United
States (January 25, 2017)
5. Executive Order Expediting Environmental Reviews and Approvals For High
Priority Infrastructure Projects (January 24, 2017)
6. Executive Order Minimizing the Economic Burden of the Patient Protection and
Affordable Care Act Pending Repeal (January 20, 2017)
Memoranda:
1. Presidential Memorandum Organization of the National Security Council and the

Homeland Security Council (January 28, 2017)
2. Presidential Memorandum Plan to Defeat the Islamic State of Iraq and Syria
(January 28, 2017)
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3. Presidential Memorandum Streamlining Permitting and Reducing Regulatory
Burdens for Domestic Manufacturing (January 24, 2017)
4. Presidential Memorandum Regarding Construction of the Dakota Access Pipeline
(January 24, 2017)
5. Presidential Memorandum Regarding Construction of the Keystone XL Pipeline
(January 24, 2017)
6. Presidential Memorandum Regarding Construction of American Pipelines
(January 24, 2017)
7. Presidential Memorandum Regarding the Hiring Freeze (January 24, 2CM 7)
8. Presidential Memorandum Regarding Withdrawal of the United States from the
Trans-Pacific Partnership Negotiations and Agreement (January 24, 2017)
9. Presidential Memorandum Regarding the Mexico City Policy (January 23, 2017)
10. Memorandum for the Heads of Executive Departments and Agencies (January 20,
2017)
Sincerely,
~~¾
United States Senator
anne Feinstein
~~'fri
Patrick Leahy
Al Franken
Christopher A. Coons
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Richard Blumenthal
United States Senator United States Senator
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF No. 17-35105

MINNESOTA,
Plaintiffs-Appellees, D.C. No.

2:17-cv-00141
v.
DONALD J. TRUMP, President of the ORDER

United States; U.S. DEPARTMENT OF
HOMELAND SECURITY; REX W.
TILLERSON, Secretary of State; JOHN
F. KELLY, Secretary of the

Department of Homeland Security;
UNITED STATES OF AMERICA,
Defendants-Appellants.
Motion for Stay of an Order of the
United States District Court for the
Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted February 7, 2017
Filed February 9, 2017
Before: William C. Canby, Richard R. Clifton, and
Michelle T. Friedland, Circuit Judges
Per Curiam Order
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2 STATE OF WASHINGTON V. TRUMP
COUNSEL
August E. Flentje (argued), Special Counsel to the Assistant
Attorney General; Douglas N. Letter, Sharon Swingle, H.
Thomas Byron, Lowell V. Sturgill Jr., and Catherine Dorsey,
Attorneys, Appellate Staff; Chad A. Readler, Acting
Assistant Attorney General; Noel J. Francisco, Acting
Solicitor General; Civil Division, United States Department

of Justice, Washington, D.C., for Defendants-Appellants.
Noah G. Purcell (argued), Solicitor General; Marsha Chien
and Patricio A. Marquez, Assistant Attorneys General;
Colleen M. Melody, Civil Rights Unit Chief; Anne E.
Egeler, Deputy Solicitor General; Robert W. Ferguson,
Attorney General; Attorney General’s Office, Seattle,
Washington; for Plaintiff-Appellee State of Washington.
Jacob Campion, Assistant Attorney General; Alan I. Gilbert,
Solicitor General; Lori Swanson, Attorney General; Office
of the Attorney General, St. Paul, Minnesota; for Plaintiff-

Appellee State of Minnesota.
ORDER
PER CURIAM:
At issue in this emergency proceeding is Executive
Order 13769, “Protecting the Nation From Foreign Terrorist
Entry Into the United States,” which, among other changes
to immigration policies and procedures, bans for 90 days the

entry into the United States of individuals from seven
countries. Two States challenged the Executive Order as

unconstitutional and violative of federal law, and a federal
district court preliminarily ruled in their favor and
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STATE OF WASHINGTON V. TRUMP 3
temporarily enjoined enforcement of the Executive Order.

The Government now moves for an emergency stay of the
district court’s temporary restraining order while its appeal
of that order proceeds.
To rule on the Government’s motion, we must consider
several factors, including whether the Government has
shown that it is likely to succeed on the merits of its appeal,
the degree of hardship caused by a stay or its denial, and the
public interest in granting or denying a stay. We assess those

factors in light of the limited evidence put forward by both
parties at this very preliminary stage and are mindful that our
analysis of the hardships and public interest in this case

involves particularly sensitive and weighty concerns on both
sides. Nevertheless, we hold that the Government has not
shown a likelihood of success on the merits of its appeal, nor

has it shown that failure to enter a stay would cause
irreparable injury, and we therefore deny its emergency
motion for a stay.
I. Background
On January 27, 2017, the President issued Executive
Order 13769, “Protecting the Nation From Foreign Terrorist
Entry Into the United States” (the “Executive Order”).

82 Fed. Reg. 8,977. Citing the terrorist attacks of September
11, 2001, and stating that “numerous foreign-born
individuals have been convicted or implicated in terrorism-

related crimes” since then, the Executive Order declares that
“the United States must ensure that those admitted to this
country do not bear hostile attitudes toward it and its

founding principles.” Id. It asserts, “Deteriorating
conditions in certain countries due to war, strife, disaster,
and civil unrest increase the likelihood that terrorists will use
any means possible to enter the United States. The United
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States must be vigilant during the visa-issuance process to
ensure that those approved for admission do not intend to
harm Americans and that they have no ties to terrorism.” Id.
The Executive Order makes several changes to the
policies and procedures by which non-citizens may enter the

United States. Three are at issue here. First, section 3(c) of
the Executive Order suspends for 90 days the entry of aliens
from seven countries: Iraq, Iran, Libya, Somalia, Sudan,
Syria, and Yemen. 82 Fed. Reg. 8,977-78 (citing the
Immigration and Nationality Act (INA) § 217(a)(12),
codified at 8 U.S.C. § 1187(a)(12)). Second, section 5(a) of
the Executive Order suspends for 120 days the United States
Refugee Admissions Program. 82 Fed. Reg. 8,979. Upon
resumption of the refugee program, section 5(b) of the

Executive Order directs the Secretary of State to prioritize
refugee claims based on religious persecution where a
refugee’s religion is the minority religion in the country of
his or her nationality. Id. Third, section 5(c) of the
Executive Order suspends indefinitely the entry of all Syrian
refugees. Id. Sections 3(g) and 5(e) of the Executive Order
allow the Secretaries of State and Homeland Security to
make case-by-case exceptions to these provisions “when in
the national interest.” 82 Fed. Reg. 8,978-80. Section 5(e)
states that situations that would be in the national interest

include “when the person is a religious minority in his
country of nationality facing religious persecution.” 82 Fed.
Reg. 8,979. The Executive Order requires the Secretaries of
State and Homeland Security and the Director of National

Intelligence to evaluate the United States’ visa, admission,
and refugee programs during the periods in which entry is

suspended. 82 Fed. Reg. 8,977-80.
The impact of the Executive Order was immediate and
widespread. It was reported that thousands of visas were
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immediately canceled, hundreds of travelers with such visas
were prevented from boarding airplanes bound for the

United States or denied entry on arrival, and some travelers
were detained. Three days later, on January 30, 2017, the
State of Washington filed suit in the United States District

Court for the Western District of Washington, challenging
sections 3(c), 5(a)-(c), and 5(e) of the Executive Order,
naming as defendants the President, the Secretary of the
Department of Homeland Security, the Secretary of State,
and the United States (collectively, “the Government”).

Washington alleged that the Executive Order
unconstitutionally and illegally stranded its residents abroad,
split their families, restricted their travel, and damaged the

State’s economy and public universities in violation of the
First and Fifth Amendments, the INA, the Foreign Affairs

Reform and Restructuring Act, the Religious Freedom
Restoration Act, and the Administrative Procedure Act.

Washington also alleged that the Executive Order was not
truly meant to protect against terror attacks by foreign
nationals but rather was intended to enact a “Muslim ban” as

the President had stated during his presidential campaign
that he would do.
Washington asked the district court to declare that the

challenged sections of the Executive Order are illegal and
unconstitutional and to enjoin their enforcement nationwide.

On the same day, Washington filed an emergency motion for
a temporary restraining order (TRO) seeking to enjoin the
enforcement of sections 3(c), 5(a)-(c), and 5(e) of the
Executive Order. Two days later, Washington’s Complaint
was amended to add the State of Minnesota as a plaintiff and
to add a claim under the Tenth Amendment. Washington
and Minnesota (collectively, “the States”) jointly filed an
amended motion for a TRO. The Government opposed the
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motion the next day, and the district court held a hearing the
day after that.
That evening, the court entered a written order granting
the TRO. Washington v. Trump, No. C17-0141-JLR, 2017
WL 462040 (W.D. Wash. Feb. 3, 2017). The district court

preliminarily concluded that significant and ongoing harm
was being inflicted on substantial numbers of people, to the
detriment of the States, by means of an Executive Order that
the States were likely to be able to prove was unlawful. Id.
at *2. The district court enjoined and restrained the

nationwide enforcement of sections 3(c) and 5(a)-(c) in their
entirety. Id. It enjoined section 5(e) to the extent that section
“purports to prioritize refugee claims of certain religious
minorities,” and prohibited the government from
“proceeding with any action that prioritizes the refugee

claims of certain religious minorities.” The court also
directed the parties to propose a briefing schedule for the
States’ request for a preliminary injunction and denied the
Government’s motion to stay the TRO pending an
emergency appeal. Id. at *3.
The Government filed a notice of appeal the next day and
sought an emergency stay in this court, including an
immediate stay while its emergency stay motion was under

consideration. We denied the request for an immediate stay
and set deadlines for the filing of responsive and reply briefs
on the emergency stay motion over the next two days. 1

Washington v. Trump, No. 17-35105, 2017 WL 469608 (9th
Cir. Feb. 4, 2017). The motion was submitted after oral
argument was conducted by telephone.
1
We have also received many amicus curiae briefs in support of
both the Government and the States.
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II. Appellate Jurisdiction
The States argue that we lack jurisdiction over the
Government’s stay motion because the Government’s

appeal is premature. A TRO is not ordinarily appealable.
See Bennett v. Medtronic, Inc., 285 F.3d 801, 804 (9th Cir.
2002). We may nonetheless review an order styled as a TRO

if it “possesses the qualities of a preliminary injunction.”
Serv. Emps. Int’l Union v. Nat’l Union of Healthcare
Workers, 598 F.3d 1061, 1067 (9th Cir. 2010). This rule has
ordinarily required the would-be appellant to show that the

TRO was strongly challenged in adversarial proceedings
before the district court and that it has or will remain in force
for longer than the fourteen-day period identified in Federal
Rule of Civil Procedure 65(b). See, e.g., id.
We are satisfied that in the extraordinary circumstances
of this case, the district court’s order possesses the qualities

of an appealable preliminary injunction. The parties
vigorously contested the legal basis for the TRO in written
briefs and oral arguments before the district court. The

district court’s order has no expiration date, and no hearing
has been scheduled. Although the district court has recently
scheduled briefing on the States’ motion for a preliminary

injunction, it is apparent from the district court’s scheduling
order that the TRO will remain in effect for longer than
fourteen days. In light of the unusual circumstances of this

case, in which the Government has argued that emergency
relief is necessary to support its efforts to prevent terrorism,
we believe that this period is long enough that the TRO
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should be considered to have the qualities of a reviewable
preliminary injunction. 2
III. Standing
The Government argues that the district court lacked
subject matter jurisdiction because the States have no
standing to sue. We have an independent obligation to
ascertain our jurisdiction, Arbaugh v. Y & H Corp., 546 U.S.

500, 514 (2006), and we consider the Government’s
argument de novo, see, e.g., Hajro v. U.S. Citizenship &
Immigration Servs., 811 F.3d 1086, 1098 (9th Cir. 2016).

We conclude that the States have made a sufficient showing
to support standing, at least at this preliminary stage of the
proceedings.
Article III, section 2 of the Constitution allows federal

courts to consider only “Cases” and “Controversies.”
Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “Those
two words confine ‘the business of federal courts to
questions presented in an adversary context and in a form
historically viewed as capable of resolution through the
judicial process.’” Id. (quoting Flast v. Cohen, 392 U.S. 83,

95 (1968)). ”Standing is an essential and unchanging part of
the case-or-controversy requirement” and is therefore a
prerequisite to our jurisdiction. See Lujan v. Defs. of

Wildlife, 504 U.S. 555, 560 (1992). The “gist of the question
of standing” is whether the plaintiff has a sufficiently
“personal stake in the outcome of the controversy” to ensure
that the parties will be truly adverse and their legal
2
Our conclusion here does not preclude consideration of appellate
jurisdiction at the merits stage of this appeal. See Nat’l Indus., Inc. v.
Republic Nat’l Life Ins. Co., 677 F.2d 1258, 1262 (9th Cir. 1982).
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presentations sharpened. Massachusetts, 549 U.S. at 517
(quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
To establish Article III standing, a plaintiff must

demonstrate “that it has suffered a concrete and
particularized injury that is either actual or imminent, that
the injury is fairly traceable to the defendant, and that it is
likely that a favorable decision will redress that injury.” Id.

(citing Lujan, 504 U.S. at 560-61).
Because standing is “an indispensable part of the

plaintiff’s case,” it “must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence required
at the successive stages of the litigation.” Lujan, 504 U.S. at
561. At this very preliminary stage of the litigation, the
States may rely on the allegations in their Complaint and
whatever other evidence they submitted in support of their
TRO motion to meet their burden. See id. With these

allegations and evidence, the States must make a “clear
showing of each element of standing.” Townley v. Miller,
722 F.3d 1128, 1133 (9th Cir. 2013). 3
The States argue that the Executive Order causes a

concrete and particularized injury to their public universities,
which the parties do not dispute are branches of the States
under state law. See, e.g., Hontz v. State, 714 P.2d 1176,
1180 (Wash. 1986) (en banc); Univ. of Minn. v. Raygor,
620 N.W.2d 680, 683 (Minn. 2001).
3
Our decision in Townley concerned a motion for a preliminary
injunction, but the legal standards applicable to TROs and preliminary
injunctions are “substantially identical.” Stuhlbarg Int’l Sales Co., Inc.
v. John D. Brush & Co., Inc., 240 F.3d 832, 839 n.7 (9th Cir. 2001).
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Specifically, the States allege that the teaching and
research missions of their universities are harmed by the

Executive Order’s effect on their faculty and students who
are nationals of the seven affected countries. These students
and faculty cannot travel for research, academic
collaboration, or for personal reasons, and their families

abroad cannot visit. Some have been stranded outside the
country, unable to return to the universities at all. The

schools cannot consider attractive student candidates and
cannot hire faculty from the seven affected countries, which
they have done in the past.
According to declarations filed by the States, for

example, two visiting scholars who had planned to spend
time at Washington State University were not permitted to
enter the United States; one was informed he would be

unable to obtain a visa. Similarly, the University of
Washington was in the process of sponsoring three

prospective employees from countries covered by the
Executive Order for visas; it had made plans for their arrival
beginning in February 2017, but they have been unable to
enter the United States. The University of Washington also
sponsored two medicine and science interns who have been
prevented by the Executive Order from coming to the
University of Washington. The University of Washington

has already incurred the costs of visa applications for those
interns and will lose its investment if they are not admitted.
Both schools have a mission of “global engagement” and
rely on such visiting students, scholars, and faculty to
advance their educational goals. Students and faculty at
Minnesota’s public universities were similarly restricted
from traveling for academic and personal reasons.
Under the “third party standing” doctrine, these injuries
to the state universities give the States standing to assert the
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rights of the students, scholars, and faculty affected by the
Executive Order. See Singleton v. Wulff, 428 U.S. 106, 114-

16 (1976) (explaining that third-party standing is allowed
when the third party’s interests are “inextricably bound up
with the activity the litigant wishes to pursue”; when the

litigant is “fully, or very nearly, as effective a proponent of
the right” as the third party; or when the third party is less
able to assert her own rights). Vendors, for example, “have
been uniformly permitted to resist efforts at restricting their
operations by acting as advocates of the rights of third parties
who seek access to their market or function.” Craig v.

Boren, 429 U.S. 190, 195 (1976). Likewise, doctors have
been permitted to assert the rights of their patients. See, e.g.,
Griswold v. Connecticut, 381 U.S. 479 (1965). And

advocacy organizations such as the NAACP have been
permitted to assert the constitutional rights of their members.

See, e.g., NAACP v. Alabama, 357 U.S. 449 (1958).
Most relevant for our purposes, schools have been
permitted to assert the rights of their students. See, e.g.,
Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976) (“It is
clear that the schools have standing to assert these arguments

[asserting free-association rights, privacy rights, and ‘a
parent’s right to direct the education of his children’] on
behalf of their patrons.”); Pierce v. Soc’y of Sisters, 268 U.S.
510, 536 (1925) (allowing a school to assert the “right of
parents to choose schools where their children will receive

appropriate mental and religious training [and] the right of
the child to influence the parents’ choice of a school”); Parks
Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th
Cir. 1995) (citing Pierce and rejecting the argument that the
plaintiff school had no standing to assert claims of
discrimination against its minority students); see also Ohio
Ass’n of Indep. Sch. v. Goff, 92 F.3d 419, 422 (6th Cir. 1996)
(citing similar authorities). As in those cases, the interests
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of the States’ universities here are aligned with their
students. The students’ educational success is “inextricably
bound up” in the universities’ capacity to teach them.

Singleton, 428 U.S. at 115. And the universities’ reputations
depend on the success of their professors’ research. Thus, as

the operators of state universities, the States may assert not
only their own rights to the extent affected by the Executive
Order but may also assert the rights of their students and
faculty members. 4
We therefore conclude that the States have alleged harms

to their proprietary interests traceable to the Executive
Order. The necessary connection can be drawn in at most

two logical steps: (1) the Executive Order prevents nationals
of seven countries from entering Washington and
Minnesota; (2) as a result, some of these people will not

enter state universities, some will not join those universities
as faculty, some will be prevented from performing research,
and some will not be permitted to return if they leave. And

we have no difficulty concluding that the States’ injuries
would be redressed if they could obtain the relief they ask
for: a declaration that the Executive Order violates the
Constitution and an injunction barring its enforcement. The

Government does not argue otherwise.
4
The Government argues that the States may not bring
Establishment Clause claims because they lack Establishment Clause
rights. Even if we assume that States lack such rights, an issue we need
not decide, that is irrelevant in this case because the States are asserting
the rights of their students and professors. Male doctors do not have
personal rights in abortion and yet any physician may assert those rights
on behalf of his female patients. See Singleton, 428 U.S. at 118.
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We therefore hold that the States have standing. 5
IV. Reviewability of the Executive Order
The Government contends that the district court lacked
authority to enjoin enforcement of the Executive Order

because the President has “unreviewable authority to
suspend the admission of any class of aliens.” The

Government does not merely argue that courts owe
substantial deference to the immigration and national
security policy determinations of the political branches—an
uncontroversial principle that is well-grounded in our

jurisprudence. See, e.g., Cardenas v. United States, 826 F.3d
1164, 1169 (9th Cir. 2016) (recognizing that “the power to
expel or exclude aliens [is] a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control” (quoting Fiallo v. Bell,
430 U.S. 787, 792 (1977))); see also Holder v.
Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)

(explaining that courts should defer to the political branches
with respect to national security and foreign relations).
Instead, the Government has taken the position that the
President’s decisions about immigration policy, particularly
when motivated by national security concerns, are
unreviewable, even if those actions potentially contravene
constitutional rights and protections. The Government

indeed asserts that it violates separation of powers for the
5
The States have asserted other proprietary interests and also
presented an alternative standing theory based on their ability to advance
the interests of their citizens as parens patriae. Because we conclude
that the States’ proprietary interests as operators of their public
universities are sufficient to support standing, we need not reach those
arguments.
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judiciary to entertain a constitutional challenge to executive
actions such as this one.
There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental

structure of our constitutional democracy. See Boumediene
v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that,
even by congressional statute, Congress and the Executive
could eliminate federal court habeas jurisdiction over enemy

combatants, because the “political branches” lack “the
power to switch the Constitution on or off at will”). Within
our system, it is the role of the judiciary to interpret the law,
a duty that will sometimes require the “[r]esolution of
litigation challenging the constitutional authority of one of
the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S.
919, 943 (1983)). We are called upon to perform that duty
in this case.
Although our jurisprudence has long counseled
deference to the political branches on matters of immigration
and national security, neither the Supreme Court nor our
court has ever held that courts lack the authority to review
executive action in those arenas for compliance with the
Constitution. To the contrary, the Supreme Court has
repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or
are not subject to the Constitution when policymaking in that
context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001)
(emphasizing that the power of the political branches over

immigration “is subject to important constitutional
limitations”); Chadha, 462 U.S. at 940-41 (rejecting the
argument that Congress has “unreviewable authority over
the regulation of aliens,” and affirming that courts can
review “whether Congress has chosen a constitutionally
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permissible means of implementing that power”). 6 Our
court has likewise made clear that “[a]lthough alienage

classifications are closely connected to matters of foreign
policy and national security,” courts “can and do review
foreign policy arguments that are offered to justify

legislative or executive action when constitutional rights are
at stake.” American-Arab Anti-Discrimination Comm. v.

Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).
Kleindienst v. Mandel, 408 U.S. 753 (1972), does not
compel a different conclusion. The Government cites
Mandel for the proposition that “‘when the Executive
exercises’ immigration authority ‘on the basis of a facially
legitimate and bona fide reason, the courts will [not] look
behind the exercise of that discretion.’” The Government

omits portions of the quoted language to imply that this
standard governs judicial review of all executive exercises
of immigration authority. In fact, the Mandel standard
applies to lawsuits challenging an executive branch official’s
decision to issue or deny an individual visa based on the
6
See also, e.g., Galvan v. Press, 347 U.S. 522, 530 (1954)
(reaffirming the broad power of Congress over immigration, but

observing that “[i]n the enforcement of these policies, the Executive
Branch of the Government must respect the procedural safeguards of due
process”); Yamataya v. Fisher, 189 U.S. 86, 100-01 (1903) (reaffirming,
in the context of adjudicating a constitutional challenge to an

immigration policy, that “this court has never held, nor must we now be
understood as holding, that administrative officers, when executing the
provisions of a statute involving the liberty of persons, may disregard the
fundamental principles that inhere in ‘due process of law’ as understood
at the time of the adoption of the Constitution”); Chae Chan Ping v.

United States, 130 U.S. 581, 604 (1889) (“The powers to declare war,
make treaties . . . and admit subjects of other nations to citizenship, are
all sovereign powers, restricted in their exercise only by the constitution

itself and considerations of public policy and justice which control, more
or less, the conduct of all civilized nations.”).
Document ID: 0.7.12561.58039

application of a congressionally enumerated standard to the
particular facts presented by that visa application. The
present case, by contrast, is not about the application of a

specifically enumerated congressional policy to the
particular facts presented in an individual visa application.

Rather, the States are challenging the President’s
promulgation of sweeping immigration policy. Such
exercises of policymaking authority at the highest levels of
the political branches are plainly not subject to the Mandel
standard; as cases like Zadvydas and Chadha make clear,
courts can and do review constitutional challenges to the

substance and implementation of immigration policy. See
Zadvydas, 533 U.S. at 695; Chadha, 462 U.S. at 940-41.
This is no less true when the challenged immigration
action implicates national security concerns. See Ex parte

Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty,
“in time of war as well as in time of peace, to preserve

unimpaired the constitutional safeguards of civil liberty”);
Ex parte Milligan, 71 U.S. 2, 120-21 (1866) (“The
Constitution of the United States is a law for rulers and
people, equally in war and in peace . . . under all
circumstances.”). We are mindful that deference to the

political branches is particularly appropriate with respect to
national security and foreign affairs, given the relative
institutional capacity, informational access, and expertise of
the courts. See Humanitarian Law Project, 561 U.S. at 33-

34.
Nonetheless, “courts are not powerless to review the
political branches’ actions” with respect to matters of
national security. Alperin v. Vatican Bank, 410 F.3d 532,
559 n.17 (9th Cir. 2005). To the contrary, while counseling
deference to the national security determinations of the

political branches, the Supreme Court has made clear that
Document ID: 0.7.12561.58039

the Government’s “authority and expertise in [such] matters

do not automatically trump the Court’s own obligation to
secure the protection that the Constitution grants to
individuals,” even in times of war. Humanitarian Law

Project, 561 U.S. at 34 (quoting id. at 61 (Breyer, J.,
dissenting)); see also United States v. Robel, 389 U.S. 258,
264 (1967) (“‘[N]ational defense’ cannot be deemed an end

in itself, justifying any exercise of legislative power
designed to promote such a goal. . . . 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.”); Zemel v. Rusk, 381 U.S.
1, 17 (1965) (“[S]imply because a statute deals with foreign
relations [does not mean that] it can grant the Executive
totally unrestricted freedom of choice.”).
Indeed, federal courts routinely review the

constitutionality of—and even invalidate—actions taken by
the executive to promote national security, and have done so
even in times of conflict. See, e.g., Boumediene, 553 U.S.
723 (striking down a federal statute purporting to deprive

federal courts of jurisdiction over habeas petitions filed by
non-citizens being held as “enemy combatants” after being
captured in Afghanistan or elsewhere and accused of
authorizing, planning, committing, or aiding the terrorist
attacks perpetrated on September 11, 2001); Aptheker v.
Sec’y of State, 378 U.S. 500 (1964) (holding unconstitutional

a statute denying passports to American members of the
Communist Party despite national security concerns); Ex

parte Endo, 323 U.S. 283 (1944) (holding unconstitutional
the detention of a law-abiding and loyal American of
Japanese ancestry during World War II and affirming federal
court jurisdiction over habeas petitions by such individuals).

As a plurality of the Supreme Court cautioned in Hamdi v.
Rumsfeld, 542 U.S. 507 (2004), “Whatever power the United
Document ID: 0.7.12561.58039

States Constitution envisions for the Executive in its
exchanges with other nations or with enemy organizations in
times of conflict, it most assuredly envisions a role for all
three branches when individual liberties are at stake.” Id. at

536 (plurality opinion).
In short, although courts owe considerable deference to
the President’s policy determinations with respect to
immigration and national security, it is beyond question that
the federal judiciary retains the authority to adjudicate
constitutional challenges to executive action.
V. Legal Standard
The Government moves to stay the district court’s order
pending this appeal. “A stay is not a matter of right, even if
irreparable injury might otherwise result.” Nken v. Holder,
556 U.S. 418, 433 (2009) (quoting Virginian Ry. Co. v.
United States, 272 U.S. 658, 672 (1926)). “It is instead ‘an
exercise of judicial discretion,’ and ‘the propriety of its issue
is dependent upon the circumstances of the particular case.’”

Id. (quoting Virginian, 272 U.S. at 672-73) (alterations
omitted). “The party requesting a stay bears the burden of
showing that the circumstances justify an exercise of that
discretion.” Id. at 433-34.
Our decision is guided by four questions: “(1) whether
the stay applicant has made a strong showing that he is likely
to succeed on the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance of the
stay will substantially injure the other parties interested in
the proceeding; and (4) where the public interest lies.” Lair
v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting
Nken, 556 U.S. at 434). “The first two factors . . . are the
most critical,” Nken, 556 U.S. at 434, and the last two steps
are reached “[o]nce an applicant satisfies the first two
Document ID: 0.7.12561.58039

factors,” id. at 435. We conclude that the Government has
failed to clear each of the first two critical steps. We also
conclude that the final two factors do not militate in favor of
a stay. We emphasize, however, that our analysis is a
preliminary one. We are tasked here with deciding only
whether the Government has made a strong showing of its
likely success in this appeal and whether the district court’s

TRO should be stayed in light of the relative hardships and
the public interest.
The Government has not shown that it is likely to
succeed on appeal on its arguments about, at least, the States’
Due Process Clause claim, and we also note the serious
nature of the allegations the States have raised with respect
to their religious discrimination claims. We express no view
as to any of the States’ other claims.
VI. Likelihood of Success—Due Process
The Fifth Amendment of the Constitution prohibits the

Government from depriving individuals of their “life,
liberty, or property, without due process of law.” U.S.

Const. amend. V. The Government may not deprive a
person of one of these protected interests without providing
“notice and an opportunity to respond,” or, in other words,
the opportunity to present reasons not to proceed with the
deprivation and have them considered. United States v.
Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014); accord

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985); ASSE Int’l, Inc. v. Kerry, 803 F.3d 1059, 1073 (9th
Cir. 2015).
The Government has not shown that the Executive Order
provides what due process requires, such as notice and a
hearing prior to restricting an individual’s ability to travel.

Indeed, the Government does not contend that the Executive
Document ID: 0.7.12561.58039

Order provides for such process. Rather, in addition to the
arguments addressed in other parts of this opinion, the
Government argues that most or all of the individuals
affected by the Executive Order have no rights under the Due
Process Clause.
In the district court, the States argued that the Executive
Order violates the procedural due process rights of various

aliens in at least three independent ways. First, section 3(c)
denies re-entry to certain lawful permanent residents and
non-immigrant visaholders without constitutionally
sufficient notice and an opportunity to respond. Second,
section 3(c) prohibits certain lawful permanent residents and
non-immigrant visaholders from exercising their separate
and independent constitutionally protected liberty interests

in travelling abroad and thereafter re-entering the United
States. Third, section 5 contravenes the procedures provided
by federal statute for refugees seeking asylum and related
relief in the United States. The district court held generally
in the TRO that the States were likely to prevail on the merits
of their due process claims, without discussing or offering
analysis as to any specific alleged violation.
At this stage of the proceedings, it is the Government’s
burden to make “a strong showing that [it] is likely to”
prevail against the States’ procedural due process claims.

Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012)
(quoting Nken v. Holder, 556 U.S. 418, 426 (2009)). We are

not persuaded that the Government has carried its burden for
a stay pending appeal.
The procedural protections provided by the Fifth

Amendment’s Due Process Clause are not limited to
citizens. Rather, they “appl[y] to all ‘persons’ within the
United States, including aliens,” regardless of “whether their
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presence here is lawful, unlawful, temporary, or permanent.”

Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights
also apply to certain aliens attempting to reenter the United
States after travelling abroad. Landon v. Plasencia, 459 U.S.

21, 33-34 (1982). The Government has provided no
affirmative argument showing that the States’ procedural

due process claims fail as to these categories of aliens. For
example, the Government has failed to establish that lawful

permanent residents have no due process rights when
seeking to re-enter the United States. See id. (“[T]he

returning resident alien is entitled as a matter of due process
to a hearing on the charges underlying any attempt to
exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449,

460 (1963))). Nor has the Government established that the
Executive Order provides lawful permanent residents with
constitutionally sufficient process to challenge their denial

of re-entry. See id. at 35 (“[T]he courts must evaluate the
particular circumstances and determine what procedures

would satisfy the minimum requirements of due process on
the re-entry of a permanent resident alien.”).
The Government has argued that, even if lawful

permanent residents have due process rights, the States’
challenge to section 3(c) based on its application to lawful

permanent residents is moot because several days after the
Executive Order was issued, White House counsel Donald
F. McGahn II issued “[a]uthoritative [g]uidance” stating that

sections 3(c) and 3(e) of the Executive Order do not apply to
lawful permanent residents. At this point, however, we

cannot rely upon the Government’s contention that the
Executive Order no longer applies to lawful permanent

residents. The Government has offered no authority
establishing that the White House counsel is empowered to
issue an amended order superseding the Executive Order
Document ID: 0.7.12561.58039

signed by the President and now challenged by the States,
and that proposition seems unlikely.
Nor has the Government established that the White

House counsel’s interpretation of the Executive Order is
binding on all executive branch officials responsible for
enforcing the Executive Order. The White House counsel is

not the President, and he is not known to be in the chain of
command for any of the Executive Departments. Moreover,
in light of the Government’s shifting interpretations of the

Executive Order, we cannot say that the current
interpretation by White House counsel, even if authoritative

and binding, will persist past the immediate stage of these
proceedings. On this record, therefore, we cannot conclude

that the Government has shown that it is “absolutely clear
that the allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, Inc., v. Laidlaw
Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis
added).
Even if the claims based on the due process rights of

lawful permanent residents were no longer part of this case,
the States would continue to have potential claims regarding

possible due process rights of other persons who are in the
United States, even if unlawfully, see Zadvydas, 533 U.S.

693; non-immigrant visaholders who have been in the
United States but temporarily departed or wish to
temporarily depart, see Landon, 459 U.S. 33-34; refugees,
see 8 U.S.C. § 1231 note 8; and applicants who have a

relationship with a U.S. resident or an institution that might
have rights of its own to assert, see Kerry v. Din, 135 S. Ct.
2128, 2139 (2015) (Kennedy, J., concurring in judgment);
id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel,
408 U.S. 753, 762-65 (1972). Accordingly, the Government

has not demonstrated that the States lack viable claims based
Document ID: 0.7.12561.58039

on the due process rights of persons who will suffer injuries
to protected interests due to the Executive Order. Indeed,
the existence of such persons is obvious.
The Government argues that, even if the States have
shown that they will likely succeed on some of their
procedural due process claims, the district court nevertheless
erred by issuing an “overbroad” TRO. Specifically, the
Government argues that the TRO is overbroad in two
independent respects: (1) the TRO extends beyond lawful

permanent residents, and covers aliens who cannot assert
cognizable liberty interests in connection with travelling into
and out of the United States, and (2) the TRO applies
nationwide, and enjoins application of the Executive Order
outside Washington and Minnesota. We decline to modify

the scope of the TRO in either respect.
First, we decline to limit the scope of the TRO to lawful
permanent residents and the additional category more

recently suggested by the Government, in its reply
memorandum, “previously admitted aliens who are

temporarily abroad now or who wish to travel and return to
the United States in the future.” That limitation on its face
omits aliens who are in the United States unlawfully, and
those individuals have due process rights as well. Zadvydas,

533 U.S. at 693. That would also omit claims by citizens
who have an interest in specific non-citizens’ ability to travel

to the United States. See Din, 135 S. Ct. at 2139 (Kennedy,
J., concurring in judgment); id. at 2142 (Breyer, J.,
dissenting) (six Justices declining to adopt a rule that would
categorically bar U.S. citizens from asserting cognizable
liberty interests in the receipt of visas by alien spouses).

There might be persons covered by the TRO who do not
have viable due process claims, but the Government’s
proposed revision leaves out at least some who do.
Document ID: 0.7.12561.58039

Second, we decline to limit the geographic scope of the
TRO. The Fifth Circuit has held that such a fragmented
immigration policy would run afoul of the constitutional and
statutory requirement for uniform immigration law and
policy. Texas v. United States, 809 F.3d 134, 187-88 (5th
Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271
(2016). At this stage of the litigation, we do not need to and
do not reach such a legal conclusion for ourselves, but we

cannot say that the Government has established that a
contrary view is likely to prevail. Moreover, even if limiting
the geographic scope of the injunction would be desirable,
the Government has not proposed a workable alternative
form of the TRO that accounts for the nation’s multiple ports
of entry and interconnected transit system and that would
protect the proprietary interests of the States at issue here
while nevertheless applying only within the States’ borders.
More generally, even if the TRO might be overbroad in
some respects, it is not our role to try, in effect, to rewrite the

Executive Order. See United States v. Nat’l Treasury Emps.
Union, 513 U.S. 454, 479 (1995) (declining to rewrite a
statute to eliminate constitutional defects); cf. Aptheker v.
Sec’y of State, 378 U.S. 500, 516 (1964) (invalidating a
restriction on freedom of travel despite the existence of

constitutional applications). The political branches are far
better equipped to make appropriate distinctions. For now,
it is enough for us to conclude that the Government has
failed to establish that it will likely succeed on its due
process argument in this appeal.
VII. Likelihood of Success—Religious Discrimination
The First Amendment prohibits any “law respecting an
establishment of religion.” U.S. Const. amend. I. A law that

has a religious, not secular, purpose violates that clause,
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Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), as does

one that “officially prefer[s] [one religious denomination]
over another,” Larson v. Valente, 456 U.S. 228, 244 (1982).

The Supreme Court has explained that this is because
endorsement of a religion “sends the ancillary message to
. . . nonadherents ‘that they are outsiders, not full members

of the political community.’” Santa Fe Indep. Sch. Dist. v.
Doe, 530 U.S. 290, 310 (2000) (quoting Lynch v. Donnelly,
465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). The
Equal Protection Clause likewise prohibits the Government

from impermissibly discriminating among persons based on
religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir.
1978).
The States argue that the Executive Order violates the

Establishment and Equal Protection Clauses because it was
intended to disfavor Muslims. In support of this argument,

the States have offered evidence of numerous statements by
the President about his intent to implement a “Muslim ban”

as well as evidence they claim suggests that the Executive
Order was intended to be that ban, including sections 5(b)
and 5(e) of the Order. It is well established that evidence of
purpose beyond the face of the challenged law may be

considered in evaluating Establishment and Equal Protection
Clause claims. See, e.g., Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free
Exercise Clause, like the Establishment Clause, extends

beyond facial discrimination. . . . Official action that targets
religious conduct for distinctive treatment cannot be

shielded by mere compliance with the requirement of facial
neutrality.”); Larson, 456 U.S. at 254-55 (holding that a
facially neutral statute violated the Establishment Clause in
light of legislative history demonstrating an intent to apply
regulations only to minority religions); Village of Arlington
Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-
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68 (1977) (explaining that circumstantial evidence of intent,
including the historical background of the decision and
statements by decisionmakers, may be considered in
evaluating whether a governmental action was motivated by
a discriminatory purpose).
The States’ claims raise serious allegations and present
significant constitutional questions. In light of the sensitive
interests involved, the pace of the current emergency

proceedings, and our conclusion that the Government has
not met its burden of showing likelihood of success on
appeal on its arguments with respect to the due process
claim, we reserve consideration of these claims until the
merits of this appeal have been fully briefed.
VIII. The Balance of Hardships and the Public

Interest
The Government has not shown that a stay is necessary
to avoid irreparable injury. Nken, 556 U.S. at 434. Although
we agree that “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), the
Government has done little more than reiterate that fact.

Despite the district court’s and our own repeated invitations
to explain the urgent need for the Executive Order to be
placed immediately into effect, the Government submitted
no evidence to rebut the States’ argument that the district

court’s order merely returned the nation temporarily to the
position it has occupied for many previous years.
The Government has pointed to no evidence that any

alien from any of the countries named in the Order has
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perpetrated a terrorist attack in the United States. 7 Rather

than present evidence to explain the need for the Executive
Order, the Government has taken the position that we must

not review its decision at all. 8 We disagree, as explained
above.
To the extent that the Government claims that it has
suffered an institutional injury by erosion of the separation
of powers, that injury is not “irreparable.” It may yet pursue
and vindicate its interests in the full course of this litigation.

See, e.g., Texas v. United States, 787 F.3d 733, 767-68 (5th
Cir. 2015) (“[I]t is the resolution of the case on the merits,
not whether the injunction is stayed pending appeal, that will
affect those principles.”).
7
Although the Government points to the fact that Congress and the
Executive identified the seven countries named in the Executive Order
as countries of concern in 2015 and 2016, the Government has not
offered any evidence or even an explanation of how the national security

concerns that justified those designations, which triggered visa
requirements, can be extrapolated to justify an urgent need for the
Executive Order to be immediately reinstated.
8
In addition, the Government asserts that, “[u]nlike the President,
courts do not have access to classified information about the threat posed
by terrorist organizations operating in particular nations, the efforts of

those organizations to infiltrate the United States, or gaps in the vetting
process.” But the Government may provide a court with classified
information. Courts regularly receive classified information under seal
and maintain its confidentiality. Regulations and rules have long been
in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice
procedures to protect classified materials in civil cases); 28 C.F.R.
§ 17.46(c) (“Members of Congress, Justices of the United States
Supreme Court, and Judges of the United States Courts of Appeal and
District Courts do not require a determination of their eligibility for
access to classified information . . . .”); W .D. W ash. Civ. L.R. 5(g)
(providing procedures governing filings under seal).
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By contrast, the States have offered ample evidence that
if the Executive Order were reinstated even temporarily, it
would substantially injure the States and multiple “other

parties interested in the proceeding.” Nken, 556 U.S. at 434
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
When the Executive Order was in effect, the States contend
that the travel prohibitions harmed the States’ university
employees and students, separated families, and stranded the

States’ residents abroad. These are substantial injuries and
even irreparable harms. See Melendres v. Arpaio, 695 F.3d

990, 1002 (9th Cir. 2012) (“It is well established that the
deprivation of constitutional rights ‘unquestionably
constitutes irreparable injury.’” (quoting Elrod v. Burns,

427 U.S. 347, 373 (1976))).
The Government suggests that the Executive Order’s
discretionary waiver provisions are a sufficient safety valve
for those who would suffer unnecessarily, but it has offered
no explanation for how these provisions would function in
practice: how would the “national interest” be determined,
who would make that determination, and when? Moreover,
as we have explained above, the Government has not
otherwise explained how the Executive Order could

realistically be administered only in parts such that the
injuries listed above would be avoided.
Finally, in evaluating the need for a stay, we must

consider the public interest generally. See Nken, 556 U.S. at
434. Aspects of the public interest favor both sides, as
evidenced by the massive attention this case has garnered at
even the most preliminary stages. On the one hand, the
public has a powerful interest in national security and in the

ability of an elected president to enact policies. And on the
other, the public also has an interest in free flow of travel, in
avoiding separation of families, and in freedom from
Document ID: 0.7.12561.58039

discrimination. We need not characterize the public interest
more definitely than this; when considered alongside the
hardships discussed above, these competing public interests

do not justify a stay.
IX. Conclusion
For the foregoing reasons, the emergency motion for a
stay pending appeal is DENIED.
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Protecting the Nation From Foreign Terrorist Entry Into the United States, 82 FR 8977
Exec. Order No. 13769, 82 FR 8977, 2017 WL 412752(Pres.)
Executive Order 13769
Protecting the Nation From Foreign Terrorist Entry Into the United States
January 27, 2017
*8977 By the authority vested in me as President by the Constitution and laws of the United States of America, including
the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and
to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby
ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping
them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of
September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa
applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-
issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from
receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11,
2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas,
or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries
due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter
the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for
admission do not intend to harm Americans and that they have no ties to terrorism.
In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile
attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not
support the Constitution, or those who would place violent ideologies over American law. In addition, the United States
should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence
against women, or the persecution of those who practice religions different from their own) or those who would oppress
Americans of any race, gender, or sexual orientation.
Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit
terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United
States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.
(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National
Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate
any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the
benefit is who the individual claims to be and is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National
Intelligence, shall submit to the President y8978a report on the results of the review described in subsection (a) of this
section, including the Secretary of Homeland Security's determination of the information needed for adjudications and
a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of
Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
WESTLAW © 201 7 Thomson Reuters. No claim to original U.S. Government Works. 1
Document ID: 0.7.12561.55961

(c) 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 of foreign
nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals,
pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry
into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would
be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants
and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling
on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2,
G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed
for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to
start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in
consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a
Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling
on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2,
G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this
section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary
of Homeland Security may submit to the President the names of any additional countries recommended for similar
treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation
described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis,
and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and
benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in
implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order,
a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the
Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of
Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify
individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of
causing harm subsequent to their admission. This program will include the development of a uniform screening standard
and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that
duplicate documents are not *8979 used by multiple applicants; amended application forms that include questions
aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the
applicant claims to be; a process to evaluate the applicant's likelihood of becoming a positively contributing member of
society and the applicant's ability to make contributions to the national interest; and a mechanism to assess whether or
not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of
National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the
President an initial report on the progress of this directive within 60 days of the date of this order,
Document ID: 0.7.12561.55961

a second report within 100 days of the date of this order, and a third report within 200 days of the
date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall
suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State,
in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence,
shall review the USRAP application and adjudication process to determine what additional procedures should be taken
to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States,
and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be
admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of
this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary
of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such
additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland
Security, is further directed to make changes, to the extent permitted by law, 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. Where necessary and appropriate, the Secretaries of State and Homeland Security
shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria
as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I
have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is
consistent with the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees
in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such
time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries
of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a
case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as
refugees is in the national interest_including when the person is a religious minority in his country of nationality facing
religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting
international agreement, or when the person is already in transit and denying admission would cause undue hardship_and
it would not pose a risk to the security or welfare of the United States.
The President *8980
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b)
of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within
100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local
jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens
eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine
existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have
Document ID: 0.7.12561.55961

greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and
shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State
and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority
in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related
implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security
shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United
States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress
of the directive contained in subsection (a) of this section. The initial report shall be submitted within
100 days of the date of this order, a second report shall be submitted within 200 days of the date of
this order, and a third report shall be submitted within 365 days of the date of this order. Further,
the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and
operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program
and ensure compliance with section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals seeking a
nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of
State shall immediately expand the Consular Fellows Program, including by substantially increasing
the number of Fellows, lengthening or making permanent the period of service, and making language
training at the Foreign Service Institute available to Fellows for assignment to posts outside of their
area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly
affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to
ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity
period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a
country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State
shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals
by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively
implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation
with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available
within 180 days, and every 180 days thereafter: *8981
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-
related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or
removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related
organization, or any other national security reasons since the date of this order or the last reporting period, whichever
is later;
Document ID: 0.7.12561.55961

(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry
into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related
organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period,
whichever is later; and
(iii) information regarding the number and types of acts of gender-based violence against women, including honor
killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever
is later; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and
the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.
(b) The Secretary of State shall, within one year of the date of this order, provide a report on the
estimated long-term costs of the USRAP at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or
legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
*8982
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at
law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or
agents, or any other person.
THE WHITE HOUSE,January 27, 2017.
Exec. Order No. 1376982 FR 89772017 WL 412752(Pres.)
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
Document ID: 0.7.12561.55961

Washington v. Trump, Slip Copy (201 7)
201 7 WL 462040
KeyCite Blue Flag – Appeal Notification
II. PROCEDURAL BACKGROUND
Appeal Filed by STATE OF WASHINGTON, ET AL v. DONALD J.

TRUMP, ET AL, 9th Cir., February 4, 2017
On January 30, 2017, the State of Washington filed a
2017 WL 462040
complaint seeking declaratory and injunctive relief against
Only the Westlaw citation is currently available.

Defendants Donald J. Trump, in his official capacity
United States District Court,

as President of the United States, the United States
W.D. Washington,
Department of Homeland Security (“DHS”), John F.
at Seattle.
Kelly, in his official capacity as Secretary of DHS, Tom
Shannon, in his official capacity as Acting Secretary of
State of Washington, et al., Plaintiffs,

State, and the United States of America (collectively,
v.
“Federal Defendants”). (See Compl.) On February 1,
Donald J. Trump, et al., Defendants.

2017, the State of Washington filed an amended complaint
adding the State of Minnesota as a plaintiff. (See FAC.)
CASE NO. C17-0141JLR

The States seek declaratory relief invalidating portions
|
of the Executive Order of January 27, 2017, entitled
Signed 02/03/2017
“Protecting the Nation from Foreign Terrorist Entry into
the United States” (“Executive Order”) (see FAC Ex. 7
Attorneys and Law Firms

(attaching a copy of the Executive Order)), and an order
enjoining Federal Defendants from enforcing those same
Marsha J. Chien, Office of the Attorney General, Colleen
portions of the Executive Order. (See generally FAC at
M. Melody, Patricio A. Marquez, Seattle, WA, Noah
18.)
Guzzo Purcell, Robert W. Ferguson, Anne Elizabeth
Egeler, Olympia, WA, Jacob Campion, Attorney General
The States are presently before the court seeking a TRO
of Minnesota, St. Paul, MN, for Plaintiffs.
against Federal Defendants. (See generally TRO Mot.)
Arjun Garg, Michelle R. Bennett, US Department of

The purpose of a TRO is to preserve the status quo before
Justice, Washington, DC, for Defendants.

the court holds a hearing on a motion for preliminary
injunction. See Granny Goose Foods, Inc. v. Bhd. Of
Teamsters &Auto Truck Drivers Local No. 70 of Alameda
TEMPORARY RESTRAINING ORDER

City, 415 U.S. 423, 439 (1974); Am. Honda Fin. Corp. v.
Gilbert Imports, LLC, No. CV-13-5015-EFS, 2013 WL
JAMES L. ROBART, United States District Judge

12120097, at *3 (E.D. Wash. Feb. 22, 2013) (“The purpose
of a TRO is to preserve the status quo until there is
an opportunity to hold a hearing on the application for
I. INTRODUCTION
a preliminary injunction....”) (internal quotation marks
*1 Before the court is Plaintiffs State of Washington and

omitted).
State of Minnesota's (collectively, “the States”) emergency
motion for a temporary restraining order (“TRO”). (TRO

Federal Defendants oppose the States' motion. (See
Mot. (Dkt. ## 3, 19 (as amended)).) The court has

generally Resp. (Dkt. # 50).)
reviewed the motion, the complaint (Compl. (Dkt. #
1)), the amended complaint (FAC (Dkt. # 18)), all the
submissions of the parties related to the motion, the

III. FINDINGS OF FACT &
relevant portions of the record, and the applicable law.

CONCLUSIONS OF LAW
In addition, the court heard the argument of counsel on
February 3, 2017. (See Min. Entry (Dkt. #51).) Having

As an initial matter, the court finds that it has jurisdiction
considered all of the foregoing, the court GRANTS the

over Federal Defendants and the subject matter of
States' motion as set forth below.

this lawsuit. The States' efforts to contact Federal
Defendants reasonably and substantially complied with
the requirements of Federal Rule of Civil Procedure 65(b).
Document ID: 0.7.12561.55832

201 7 WL 462040
See Fed. R. Civ. P. 65(b). Indeed, Federal Defendants

a likelihood of irreparable injury and that a TRO is in the
have appeared, argued before the court, and defended

public interest.
their position in this action. (See Not. of App. (Dkt. ##
20, 21); Min. Entry; see generally Resp.;)

Specifically, for purposes of the entry of this TRO, the
court finds that the States have met their burden of
The standard for issuing a TRO is the same as the

demonstrating that they face immediate and irreparable
standard for issuing a preliminary injunction, See New

injury as a result of the signing and implementation of the
Motor Vehicle Bd. of Cal v. Orrin W. Fox Co., 434 U.S.

Executive Order. The Executive Order adversely affects
1345, 1347 n.2 (1977). A TRO is “an extraordinary remedy

the States' residents in areas of employment, education,
that may only be awarded upon a clear showing that the

business, family relations, and freedom to travel. These
plaintiff is entitled to such relief.” Winter v. Nat, Res. Def.

harms extend to the States by virtue of their roles as
Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal

parens patriae of the residents living within their borders.
standard for preliminary injunctive relief requires a party

In addition, the States themselves are harmed by virtue
to demonstrate (1) ‘that he is likely to succeed on the

of the damage that implementation of the Executive
merits, (2) that he is likely to suffer irreparable harm in

Order has inflicted upon the operations and missions of
the absence of preliminary relief, (3) that the balance of

their public universities and other institutions of higher
equities tips in his favor, and (4) that an injunction is in

learning, as well as injury to the States' operations, tax
the public interest.’ ” Stormans, Inc. v. Selecky, 586 F.3d

bases, and public funds. These harms are significant and
1109, 1127 (9th Cir. 2009) (citing Winter, 555 U.S. at 20).
ongoing. Accordingly, the court concludes that a TRO
against Federal Defendants is necessary until such time
*2 As an alternative to this test, a preliminary injunction

as the court can hear and decide the States' request for a
is appropriate if “serious questions going to the merits

preliminary injunction.
were raised and the balance of the hardships tips sharply in
the plaintiff's favor,” thereby allowing preservation of the
status quo when complex legal questions require further
IV. TEMPORARY RESTRAINING ORDER
inspection or deliberation. All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011). However,

It is hereby ORDERED that:
the “serious questions” approach supports the court's
entry of a TRO only so long as the plaintiff also shows

1. Federal Defendants and all their respective officers,
that there is a likelihood of irreparable injury and that the

agents, servants, employees, attorneys, and persons
injunction is in the public interest. Id. at 1135. The moving

acting in concert or participation with them are
party bears the burden of persuasion and must make a

hereby ENJOINED and RESTRAINED from:
clear showing that it is entitled to such relief. Winter, 555
(a) Enforcing Section 3(c) of the Executive Order;
U.S. at 22.
(b) Enforcing Section 5(a) of the Executive Order;
The court finds that the States have satisfied these
standards and that the court should issue a TRO. The

(c) Enforcing Section 5(b) of the Executive Order
States have satisfied the Winter test because they have

or proceeding with any action that prioritizes the
shown that they are likely to succeed on the merits of the

refugee claims of certain religious minorities;
claims that would entitle them to relief; the States are likely
to suffer irreparable harm in the absence of preliminary

(d) Enforcing Section 5(c) of the Executive Order;
relief; the balance of the equities favor the States; and a
(e) Enforcing Section 5(e) of the Executive Order
TRO is in the public interest. The court also finds that
to the extent Section 5(e) purports to prioritize
the States have satisfied the “alternative” Cottrell test
refugee claims of certain religious minorities.
because they have established at least serious questions
going to the merits of their claims and that the balance

2. This TRO is granted on a nationwide basis and
of the equities tips sharply in their favor. As the court

prohibits enforcement of Sections 3(c), 5(a), 5(b),
noted for the Winter test, the States have also established
5(c), and 5(e) of the Executive Order (as described
in the above paragraph) at all United States borders
Document ID: 0.7.12561.55832

201 7 WL 462040
and ports of entry pending further orders from this

Fundamental to the work of this court is a vigilant
court. Although Federal Defendants argued that any

recognition that it is but one of three equal branches of
TRO should be limited to the States at issue (see

our federal government. The work of the court is not to
Resp. at 30), the resulting partial implementation

create policy or judge the wisdom of any particular policy
of the Executive Order “would undermine the

promoted by the other two branches. That is the work of
the legislative and executive branches and of the citizens
constitutional imperative of ‘a uniform Rule of
of this country who ultimately exercise democratic control
Naturalization’ and Congress's instruction that ‘the
over those branches. The work of the Judiciary, and this
immigration laws of the United States should be
court, is limited to ensuring that the actions taken by the
enforced vigorously and uniformly.’ ” Texas v. United
other two branches comport with our country's laws, and
States, 809 F.3d 134, 155 (5th Cir. 2015) (footnotes
more importantly, our Constitution. The narrow question
omitted) (quoting U.S. CONST, art. I, § 8, cl.
the court is asked to consider today is whether it is
4 (emphasis added) and Immigration and Reform
appropriate to enter a TRO against certain actions taken
Control Act of 1986, Pub. L. No. 99-603, § 115(1),
by the Executive in the context of this specific lawsuit.
100 Stat. 3359, 3384 (emphasis added)). 1
Although the question is narrow, the court is mindful of
*3 3. No security bond is required under Federal Rule

the considerable impact its order may have on the parties
of Civil Procedure 65(c).

before it, the executive branch of our government, and the
country's citizens and residents. The court concludes that
4. Finally, the court orders the parties to propose a

the circumstances brought before it today are such that it
briefing schedule and noting date with respect to the

must intervene to fulfill its constitutional role in our tripart
States' motion for a preliminary injunction no later

government. Accordingly, the court concludes that entry
than Monday, February 6, 2017 at 5:00 p.m. The

of the above-described TRO is necessary, and the States'
court will promptly schedule a hearing on the States'

motion (Dkt. ## 2, 19) is therefore GRANTED.
motion for a preliminary injunction, if requested and
necessary, following receipt of the parties' briefing.
All Citations
Slip Copy, 2017 WL 462040
V. CONCLUSION
Footnotes
1 An equally divided Supreme Court affirmed Texas v. United States, 809 F.3d 134, in United States v. Texas, ––– U.S.
––––, 136 S. Ct. 2271 (2016) (per curiam).
End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.
Document ID: 0.7.12561.55832

Case: 17-35105, 02/04/2017, ID: 10302845, DktEntry: 14, Page 1 of 125
No. 17-35105
IN THE UNITED STATES COURT OF APPEALS

STATE OF WASHINGTON, et al.,

Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
EMERGENCY MOTION
UNDER CIRCUIT RULE 27-3 FOR ADMINISTRATIVE STAY
AND MOTION FOR STAY PENDING APPEAL
_____________________
NOEL J. FRANCISCO CHAD A. READLER

Acting Solicitor General Acting Assistant Attorney
General
AUGUST E. FLENTJE
Special Counsel to the Assistant
Attorney General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON
LOWELL V. STURGILL JR.
CATHERINE DORSEY
Attorneys, Appellate Staff

Civil Division, Room 7241
950 Pennsylvania Ave., NW
Washington, DC 20530
Document ID: 0.7.12561.60389

CIRCUIT RULE 27-3 CERTIFICATE
The undersigned counsel certifies that the following is the information
required by Circuit Rule 27-3:
(1) Telephone numbers and addresses of the attorneys for the parties
Counsel for Appellants Donald Trump, et al.

Noel J. Francisco
Chad A. Readler (Chad.A.Readler@usdoj.gov)
August E. Flentje
Douglas N. Letter (Douglas.Letter@usdoj.gov)
Sharon Swingle (Sharon.Swingle@usdoj.gov)
H. Thomas Byron (H.Thomas.Byron@usdoj.gov)
Lowell V. Sturgill Jr. (Lowell.Sturgill@usdoj.gov)
(202) 514-3427
Counsel for Appellees
For State of Washington:

Colleen N. Melody (Coleenm1@atg.WA.Gov)
Noah Guzzo Purcell (Noahp@atg.Wa.Gov)
Anne Elizabeth Egeler (Annee1@atg.Wa.Gov)

Patricio A. Marquez (Patriciom@atg.Wa.Gov)
Marsha J. Chien (Marshac@atg.Wa.Gov)
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
(206) 464-7744
Document ID: 0.7.12561.60389

For State of Minnesota:
Jacob Campion (Jacob.Campion@ag.State.Mn.Us)

445 Minnesota Street, Suite 1100
St. Paul, MN 55101
(651) 757-1459
(2) Facts showing the existence and nature of the emergency
As set forth more fully in the motion, the district court has entered a
nationwide injunction barring enforcement of provisions of an Executive Order
issued pursuant to constitutional and statutory authority to address national security
concerns, which is imposing irreparable harm on the defendants and the general
public. The injunction contravenes the constitutional separation of powers; harms
the public by thwarting enforcement of an Executive Order issued by the nation’s
elected representative responsible for immigration matters and foreign affairs; and
second-guesses the President’s national security judgment about the quantum of risk
posed by the admission of certain classes of aliens and the best means of minimizing
that risk.
(3) When and how counsel notified
The undersigned counsel notified counsel for the plaintiffs by email on
February 4, 2017, of the defendants’ intent to file this motion. Service will be
effected by electronic service through the CM/ECF system.
ii
Document ID: 0.7.12561.60389

(4) Submissions to the district court
The defendants requested a stay from the district court on February 3, 2017,
which the district court orally denied.
Counsel to Defendants

/s/ Noel J. Francisco Acting Assistant Attorney
Acting Solicitor General General
AUGUST E. FLENTJE
Attorney General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON
CATHERINE DORSEY

iii
Document ID: 0.7.12561.60389

INTRODUCTION
The President of the United States has determined that “[d]eteriorating
conditions in certain countries due to war, strife, disaster, and civil unrest increase
the likelihood that terrorists will use any means possible to enter the United States,”
and that our Nation accordingly must take additional steps “to ensure that those
approved for admission do not intend to harm Americans and that they have no ties
to terrorism.” Executive Order: Protecting the Nation from Foreign Terrorist Entry
into the United States (Jan. 27, 2017) (Order) (Exhibit A).
Invoking his constitutional authority to control the entry of aliens into this
country and congressionally delegated authority to “suspend the entry of * * * any
class of aliens” whose entry “would be detrimental to the interests of the United
States,” the President has directed a temporary 90-day suspension of entry for
individuals from seven countries previously identified as posing a heightened risk of
terrorism by Congress or the Executive Branch; a temporary 120-day suspension of
the U.S. Refugee Admissions Program; and a suspension of entry of Syrian nationals
as refugees until the President determines that measures are in place “to ensure that
admission of Syrian refugees is consistent with the national interest.” Exec. Order
§§ 3(c), (5)(a), (c).
As another district court recently concluded in a thorough, well-reasoned
opinion, the Order is a lawful exercise of the political branches’ plenary control over
Document ID: 0.7.12561.60389

the admission of aliens into the United States. Louhghalam v. Trump, Civ. No. 17-
10154-NMG, Order 11 (D. Mass. Feb. 3, 2017) (Exhibit B).
The district court here nevertheless issued an immediate, nationwide
injunction barring enforcement of the Order, accompanied by virtually no legal
analysis. R 52 (Exhibit C).
The district court’s sweeping injunction should be stayed pending appeal. It
conflicts with the basic principle that “an alien seeking initial admission to the
United States requests a privilege and has no constitutional rights regarding his
application, for the power to admit or exclude aliens is a sovereign prerogative.”
Landon v. Plasencia, 459 U.S. 21, 32 (1982). It also contravenes the considered
judgment of Congress that the President should have the unreviewable authority to
suspend the admission of any class of aliens. The district court did not confront
those authorities; indeed, it gave no explanation why the State of Washington has a
high likelihood of success on the merits of its claims. And it entered the injunction
at the behest of a party that is not itself subject to the Executive Order; lacks Article
III standing or any right to challenge the denial of entry or visas to third-party aliens;
and brings a disfavored facial challenge. The injunction is also vastly overbroad—
it is untethered to Washington’s particular claims; extends even to aliens abroad who
currently have no visas; and applies nationwide, effectively overriding the judgment
Document ID: 0.7.12561.60389

of another district court that sustained the Executive Order against parallel
challenges.
The balance of harms weighs strongly in favor of a stay, as well as an
immediate administrative stay pending consideration of the request for a full stay
pending appeal. The injunction immediately harms the public by thwarting
enforcement of an Executive Order issued by the President, based on his national
security judgment. As the President acted well within both statutory and
constitutional authorization, the relief irreparably harms our system of government
by contravening the Constitution’s separation of powers. The State, by comparison,
has identified only speculative harms it would suffer from temporary suspension of
the entry of aliens affected by the Order, and that harm could be minimized by
expediting appeal.
BACKGROUND
A. The President’s Authority
1. In the Immigration and Nationality Act of 1952 (“INA”), 8 U.S.C. §§ 1101
et seq., as amended, Congress established the framework for deciding which aliens
may enter and remain in the United States. Congress expressly granted the President
broad discretionary authority, whenever he “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,” to “suspend the entry of all aliens or any class of aliens as immigrants
Document ID: 0.7.12561.60389

or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to
be appropriate * * *.” 8 U.S.C. § 1182(f).
Numerous Presidents have invoked this authority,1 including an order by
President Reagan based on nationality, i.e., a suspension of entry of certain Cuban
nationals as immigrants into the United States. See 1986 WL 796773 (Aug. 22,
1986).
2. In addition to that statutory authority, the President has expansive
constitutional authority under Article II over foreign affairs, national security, and
immigration. “The exclusion of aliens is a fundamental act of sovereignty * * *
inherent in the executive power to control the foreign affairs of the nation.” Knauff
v. Shaughnessy, 338 U.S. 537, 542 (1950).
B. The President’s Order
Invoking these constitutional and statutory authorities, the President issued
the Order “to protect the American people from terrorist attacks by foreign nationals
admitted to the United States.” Order § 2.
1
Presidential Proclamation 5517 (President Reagan); Exec. Order No. 12,324
(President Reagan); Exec. Order No. 12,807 (President George H.W. Bush);
Presidential Proclamation 6958 (President Clinton); Presidential Proclamation 8342
(President George W. Bush); Presidential Proclamation 8693 (President Obama);
Exec. Order No. 13,694 (President Obama); Exec. Order No. 13,726 (President
Obama).
Document ID: 0.7.12561.60389

The Order directs a number of actions in the interests of national security. Id.
§§ 2-11. The Secretary of Homeland Security is directed to conduct an immediate
review to identify the “information needed from any country * * * to determine that
[an] individual seeking [an immigration-related] benefit is who the individual claims
to be and is not a security or public-safety threat.” Id. § 3(a). The Order also directs
a process for requesting necessary information from foreign governments that do not
supply such information, and consequences for countries not providing it. See id.
§ 3(d)-(f).
While that review is ongoing, the Order suspends entry for 90 days of aliens
from seven countries previously identified as being associated with a heightened risk
of terrorism pursuant to 8 U.S.C. § 1187(a)(12). Id. § 3(c). Section 1187(a)(12),
enacted in 2015, modifies the visa waiver program. Pub. L. No. 114-113, 129 Stat.
2242, 2990 (2015). That program allows nationals of certain countries to enter the
United States without a visa. See 8 U.S.C. § 1187. Section 1187(a)(12) bars from
the visa waiver program any individuals who are nationals of or have recently
travelled to certain countries that raise terrorism-related concerns. Congress itself
identified Iraq and Syria as countries of concern, and also included countries that
have been designated by the Secretary of State as sponsors of terrorism: Iran, Sudan,
and Syria. Id. § 1187(a)(12)(A)(i)(I)-(II), (ii)(I)-(II). In addition, Congress
authorized the Executive Branch to designate additional “countries or areas of
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concern” based on “whether the presence of an alien in the country or area increases
the likelihood that the alien is a credible threat to the national security of the United
States,” “whether a foreign terrorist organization has a significant presence in the
country or area,” and “whether the country or area is a safe haven for terrorists.” 8
U.S.C. § 1187(a)(12)(D)(ii). In February 2016, the Executive Branch exercised that
authority to bar from the visa waiver program individuals who had recently travelled
to Libya, Somalia, and Yemen, in an effort to ensure that the visa waiver program’s
“requirements are commensurate with the growing threat from foreign terrorist
fighters.” https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-
restrictions-visa-waiver-program.
Exceptions to the Order’s suspension of the entry of aliens from the seven
countries identified under § 1187(a)(12) can be made on a case-by-case basis. Order
§ 3(g). The suspension of entry does not apply to lawful permanent residents of the
United States (i.e., an immigrant admitted with the privilege of residing permanently
in the United States, 8 U.S.C. § 1101(a)(20)). Feb. 1, 2017 Memorandum (Exhibit
D).
The Order also suspends for 120 days the U.S. refugee program, which is
independently committed to the discretion of the President under 8 U.S.C. § 1157(a),
to permit a review of the “application and adjudication process to determine what
additional procedures should be taken to ensure that those approved for refugee
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admission do not pose a threat to the security and welfare of the United States.”
Order § 5(a). Once the refugee program is resumed, the Secretary of State is directed
to “make changes, to the extent permitted by law, 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). The Order contemplates the entry of a total of up to 50,000 refugees during
Fiscal Year 2017. Id. § 5(d).
Finally, the Order suspends entry of nationals of Syria as refugees under 8
U.S.C. § 1182(f) until the President determines that sufficient changes have been
made to the refugee program “that admission of Syrian refugees is consistent with
the national interest.” Id. § 5(c).
C. Procedural History
The State of Washington brought this action on January 30, 2017, asserting
constitutional and statutory claims against the United States, the President, and the
Secretaries of Homeland Security and State. Complaint, R1. On the same day,
Washington moved for a temporary restraining order. R3. Washington
subsequently amended its complaint to add Minnesota as a plaintiff. See R8.
Defendants opposed Washington’s motion. R50. The district court held a
hearing on February 3, 2017. First orally, and then in a brief written order, the court
issued a nationwide injunction, effective immediately, barring enforcement of
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sections 3(c), 5(a)-(c), and 5(e) of the Order. Transcript 48-49 (Exhibit E); R52.
The court also denied defendants’ motion for a stay. Transcript 50.
ARGUMENT
An immediate stay pending appeal is appropriate in this case because
defendants can establish (1) a strong likelihood of success on appeal; (2) a likelihood
that it will be irreparably harmed absent a stay; (3) that plaintiffs will not be
substantially harmed by a stay; and (4) public interest in a stay. See Hilton v.
Braunskill, 481 U.S. 770, 776 (1987).
This Court has jurisdiction under 28 U.S.C. § 1292(a)(1). Although
temporary restraining orders are ordinarily not appealable, this Court has jurisdiction
over appeals from “interlocutory orders of the district courts pertaining to
injunctions”; “the essence of the order, not its moniker,” determines appealability.
Service Employees v. Nat’l Union of Healthcare, 598 F.3d 1061, 1067 (9th Cir.
2010). Where, as here, the “district court holds an adversary hearing and the basis
for the court’s order was strongly challenged,” and the length of the injunction (in
this case, indefinite) “exceeds the ordinary duration” of temporary restraining orders,
the order is properly treated as an appealable injunctive order. Id.
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A. Defendants Are Likely to Succeed on Appeal.
The district court erred in concluding that Washington is likely to succeed on
the merits.2 In fact, Washington lacks Article III standing, has no basis for
challenging the denial of visas or entry to third-party aliens, and has not identified
any legal defect in the Order—much less one that would justify the facial injunctive
relief granted by the district court.
1. Washington Lacks Article III Standing to Bring this Action.
The district court reasoned that the Washington has Article III standing
because the Order “adversely affects the States’ residents in areas of employment,
education, business, family relations, and freedom to travel,” and that these harms
“extend to the States by virtue of their roles as parens patriae of the residents living
within their borders.” R52, at 4-5. But a State cannot bring a parens patriae action
against federal defendants. In dismissing Massachusetts’ challenge to a federal
statute designed to “protect the health of mothers and infants” in Massachusetts v.
Mellon, the Supreme Court explained that “it is no part of [a State’s] duty or power
to enforce [its citizens’] rights in respect of their relations with the federal
government.” 262 U.S. 447, 478, 485-86 (1923); accord South Carolina v.
Katzenbach, 383 U.S. 301, 324 (1966).
2
Because Minnesota, which was added as a plaintiff in the amended complaint,
did not move for interim injunctive relief, we address only Washington’s standing.
Regardless, the arguments apply equally to Minnesota.
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The district court also reasoned that “the States themselves are harmed by
virtue of the damage that implementation of the Order has inflicted upon the
operations and missions of their public universities and other institutions of higher
learning, as well as injury to the States’ operations, tax bases, and public funds.”
R52, at.5. These attenuated and speculative alleged harms are neither concrete nor
particularized.
With respect to Washington’s public universities, most if not all of the
students and faculty members the State identifies are not prohibited from entering
the United States, and others’ alleged difficulties are hypothetical or speculative.3
That is particularly true given the Order’s waiver authority. See Executive Order
§§ 3(g), 5(e). Furthermore, any assertion of harm to the universities’ reputations and
ability to attract students is insufficiently concrete for standing. Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990). And although Washington suggested that the
Order might affect its recruitment efforts and child welfare system, it conceded that
it could not identify any currently affected state employees, nor any actual impact
on its child welfare system. See Schumacher Decl. ¶ 7, R17-5; Strus Decl., R17-6.
3
See, e.g., Second Riedinger Decl. ¶¶ 3-7, R17-2 (allegations about lawful
permanent residents, who are not impacted by the Executive Order); Boesenberg
Decl. ¶ 6, R17-3 (same); Second Riedinger Decl. ¶ 8 (asserting that certain countries
may “ban * * * U.S. travelers” in response to the Executive Order); Second
Chaudhry Decl. ¶ 8, R17-4 (alleging one faculty member may be unable to return to
the university in the future).
10
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Washington’s contentions regarding its tax base and public funds are equally
flawed. See Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (finding no standing based
on Florida’s allegation that challenged law would diminish tax base); see also, e.g.,
Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985).4
Nor does Washington have any “legally protected interest,” Arizona Christian
Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011), in the grant or denial of entry
to an alien outside the United States. The INA’s carefully reticulated scheme
provides for judicial review only at the behest of an alien adversely affected, and
even then only if the alien is subject to removal proceedings, see 8 U.S.C. § 1252.
Under longstanding principles exemplified by the doctrine of consular
nonreviewability, an alien abroad cannot obtain judicial review of the denial of a
visa (or his failure to be admitted as a refugee). Brownell v. Tom We Shung, 352
U.S. 180, 184 n.3, 185 n.6 (1956). It follows that a third party, like Washington, has
no “judicially cognizable interest,” Linda R.S. v. Richard D., 410 U.S. 614, 619
(1973), in such a denial. Or to put it in Administrative Procedure Act (APA) terms,
review is precluded by the INA, the relevant determinations are committed to the
4
Washington cited no case recognizing the standing of a State, which cannot
suffer “spiritual or psychological harm” or hold “religious beliefs” that could be
“stigmized,” Catholic League for Religious & Civil Rights v. City & Cty. of San
Francisco, 624 F.3d 1043, 1050-52 (9th Cir. 2010), to bring an Establishment Clause
challenge.
11
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Executive’s discretion (indeed, to the President, who is not subject to the APA), and
Washington lacks a cause of action. 5 U.S.C. §§ 701(a), (702).
2. The Order Is a Valid Exercise of the Executive’s

Constitutional and Statutory Power
This express delegation from Congress in 8 U.S.C. § 1182(f), coupled with
the President’s own Article II powers over foreign affairs and national security,
mean that the President’s “authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can delegate.” Zivotofsky ex rel.
Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84 (2015); see also, e.g., Harisiades v.
Shaughnessy, 342 U.S. 580, 588 (1952) (recognizing that control over immigration
is an integral part of Article II authorities “in regard to the conduct of foreign
relations [and] the war power”).
In the immigration context specifically, “[t]he Supreme Court has ‘long
recognized the power to expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government’s political departments largely immune from judicial
control.’” Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016) (quoting
Fiallo v. Bell, 430 U.S. 787, 792 (1977)). “When Congress delegates this plenary
power to the Executive, the Executive’s decisions are likewise generally shielded
from administrative or judicial review.” Cardenas, 826 F.3d at 1169.
The Order falls squarely within Congress’ delegation in 8 U.S.C. § 1182(f) of
the “power to prevent the entry of any alien or groups of aliens into this country as
12
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well as * * * to grant entry to such person or persons with any restriction on their
entry as he may deem to be appropriate.” Mow Sun Wong v. Campbell, 626 F.2d
739, 744 n.9 (9th Cir. 1980); accord Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d
1498, 1507 (11th Cir. 1992). “Pursuant to, and without exceeding, that grant of
discretionary authority, the President * * * suspended entry of aliens from the seven
subject countries.” Louhghalam, Order 17.
As noted above (at p. 4), prior Presidents have repeatedly invoked this
authority to suspend entry of certain classes of aliens, including on the basis of
nationality. In reviewing an Executive Order directing the interdiction and forcible
repatriation of undocumented aliens outside the territorial waters of the United
States, the Supreme Court found it “perfectly clear that 8 U.S.C. § 1182(f) * * *
grants the President ample power to establish [by Executive Order] a naval blockade
that would simply deny illegal Haitian migrants the ability to disembark on our
shores.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 187 (1993) (emphasis
added). And courts have repeatedly affirmed that “[d]istinctions on the basis of
nationality may be drawn in the immigration field by the Congress or the Executive.”
Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979); see also, e.g., Jean v.
Nelson, 727 F.2d 957, 978 n.30 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846
(1985); Rajah v. Mukasey, 544 F.3d 427, 435 (2d Cir. 2008).
13
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Washington argued in district court that the President’s authority under
§ 1182(f) is limited by 8 U.S.C. § 1152(a)(1)(A), which provides, with certain
exceptions, 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.” But this restriction does
not address the President’s authority under § 1182(f) to “suspend the entry” of aliens,
which is an entirely different act under the immigration laws. An immigrant visa
does not entitle an alien to admission to the United States, and even if an alien is
issued a valid visa, he is subject to being denied admission to this country when he
arrives at the border. See, e.g., Khan v. Holder, 608 F.3d 325, 330 (7th Cir. 2010).
There is no inconsistency between § 1152(a)(1)(A) and the President’s issuance of
the Order under § 1182(f).
In any event, even if there were thought to be some potential inconsistency
between § 1152(a)(1)(A) and § 1182(f) , 8 U.S.C. § 1152(a)(1)(B) makes clear that
the statute does not “limit the authority of the Secretary of State to determine the
procedures for the processing of immigrant visa applications * * *.” This establishes
that the Order is not covered by the restrictions of subsection (A), because the Order
directs a review and revision of procedures for processing of visa applications and
adopts procedures for a temporary suspension and then resumption of processing of
certain visa applications following that review. See, e.g., Order §§ 3(a), 5(a).
14
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Furthermore, while the review is pending, the Secretaries of State and Homeland
Security have discretion to grant visas on a case-by-case basis. Id. §§ 3(g), 5(e).
Washington’s interpretation of the two provisions, in contrast, would lead to the
untenable result that the United States could not suspend entry of nationals of a
country with which the United States is at war, which would raise a serious
constitutional question about Congress’s ability to restrict the President’s Article II
authority to ensure the nation’s security.
3. The District Court Improperly Second-Guessed the

President’s National Security Determinations
By its plain terms, 8 U.S.C. § 1182(f) vests complete discretion in the
President to determine whether “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,” to
suspend entry or impose such conditions of entry as the President “may deem
appropriate” for such period as “he shall deem necessary.” The President’s exercise
of this discretion “is not limited to circumstances defined in the statute,” and “the
statute provides no discernable standards” for reviewing his determination. Haitian
Refugee Ctr., Inc. v. Baker, 789 F. Supp. 1552, 1575-76 (S.D. Fla. 1991); see also
Webster v. Doe, 486 U.S. 592, 594, 600-01 (1988).
Judicial second-guessing of the President’s determination that a temporary
suspension of entry of certain classes of aliens was necessary at this time to protect
national security would constitute an impermissible intrusion on the political
15
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branches’ plenary constitutional authority over foreign affairs, national security, and
immigration. See, e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952)
(“[A]ny 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.”). “[I]t is not
within the province of any court, unless expressly authorized by law, to review the
determination of the political branch of the Government to exclude a given alien.”
Knauff, 338 U.S. at 543; see also INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999).
Courts are particularly ill-equipped to second-guess the President’s
prospective judgment about future risks, as decisions about how best to “confront
evolving threats” are “an area where information can be difficult to obtain and the
impact of certain conduct difficult to assess.” Holder v. Humanitarian Law Project,
561 U.S. 1, 34 (2010). Unlike the President, courts do not have access to classified
information about the threat posed by terrorist organizations operating in particular
nations, the efforts of those organizations to infiltrate the United States, or gaps in
the vetting process. See, e.g., Al Haramain Islamic Found., Inc. v. Dep’t of Treasury,
686 F.3d 965, 980 (9th Cir. 2012).
Washington nevertheless argued that the district court should disregard the
President’s stated rationale for issuing the Executive Order because Washington
believed it was prompted by religious animus toward Islam. That argument is
16
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wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770
(1972), which held that, “when the Executive exercises” immigration authority “on
the basis of a facially legitimate and bona fide reason, the courts will [not] look
behind the exercise of that discretion[.]” Cf. Kerry v. Din, 135 S. Ct. 2128, 2140
(2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning has particular
force in the area of national security”). Here, as another district court has recognized,
the Executive Order undeniably states a facially legitimate and bona fide reason—
ensuring “the “proper review and maximum utilization of available resources for the
screening of foreign nationals” and “that adequate standards are established to
prevent infiltration by foreign terrorists.” Order, §§ 3(c), 5(a), (c); see Louhghalam,
Order 18-19. The Order does so in part by incorporating a list of seven countries
that were identified by Congress—and by the Executive in 2016—as raising
terrorism-related concerns. Accordingly, Mandel forecloses the State’s challenge.
Louhghalam, Order 18-19.
The more searching inquiry envisioned by the States would create substantial
separation-of-powers problems, by permitting probing of the President’s subjective
motive in issuing the Order, cf. United States v. O’Brien, 391 U.S. 367, 383-84
(1968) (inquiry into the subjective motives of members of Congress is a “hazardous
matter”), and here even seeking an injunction running against the President himself,
see Mississippi v. Johnson, 71 U.S. 475, 501 (1867).
17
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4. The State’s Constitutional Challenges Are Without Merit
Washington’s equal protection and procedural due process challenges also
fail. See Louhghalam, Order 8-11, 13-16. As an initial matter, “[t]he word ‘person’
in the context of the Due Process Clause of the Fifth Amendment cannot * * * be
expanded to encompass the States of the Union.” Katzenbach, 383 U.S. at 323; see
also Premo v. Martin, 119 F.3d 764, 771 (9th Cir. 1997). Nor can Washington
invoke the Fifth Amendment rights of its citizens against the federal government.
See Katzenbach, 383 U.S. at 324.
Furthermore, the vast majority of the individuals that Washington claims are
affected by the Executive Order are aliens outside the United States, but it is “clear”
that “an unadmitted and nonresident alien” “had no constitutional right of entry to
this country as a nonimmigrant or otherwise.” Mandel, 408 U.S. at 762; see
Plasencia, 459 U.S. at 32. This is fatal to Washington’s facial challenges, which
require it to show that there is no constitutionally valid application of the Order.
Even if the State could show a constitutional violation with respect to some
individuals—and it cannot—they plainly cannot establish such a violation as to non-
resident aliens who are outside the United States and who have no prior connection
to this country.
For the reasons explained in Louhghalam, moreover, the State cannot possibly
make that showing. Indeed, the State’s claim of animus is irreconcilable with the
18
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fact that the seven countries listed in Section 3(c) of the Order are the same seven
countries that Congress and the Executive Branch identified in restricting the visa-
waiver program in 2015 and 2016, precisely because those countries are hotbeds of
terrorist activity. See pp. 5-6, supra; see also 8 U.S.C. 1187(a)(12)(D)(iii).
Washington argued in district court that Section 5(b) of the Order violates the
Establishment Clause by “giv[ing] preference to Christian refugees while
disadvantaging Muslim refugees.” TRO Mot. at 7. But Section 5(b) provides an
accommodation for refugees from each country in the refugee program, not just
those specified in sections 3(a) & (c). As a result, it does not favor Christian refugees
at the expense of Muslims, but rather is neutral with respect to religion. See
Louhghalam, Civ. No. 17-10154-NMG, Order 13 (Section 5(b) does not favor
Christians over Muslims in violation of the Establishment Clause because it “could
be invoked to give preferred refugee status to a Muslim individual in a country that
is predominantly Christian”). Nor does it violate the Clause to recognize that
religious minorities are more likely to face persecution than members of the
dominant religion. Cf. Cutter v. Wilkinson, 544 U.S. 709, 713 (2005) (Establishment
Clause permits accommodation of religion). Washington’s Establishment Clause
challenge to Section 5(b) also is not ripe, since that section does not take effect for
at least 120 days.
19
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5. The District Court Improperly Issued a Nationwide Injunction.
An injunction should extend no further “than necessary to provide complete
relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765
(1994). The district court’s order violates this rule by extending beyond any
immediate impact on the State’s own institutions to include private persons and
indeed all jurisdictions nationwide, including Massachusetts, where a court has
upheld the Order against challenges similar to those presented here, Louhghalam,
Order 18-19.
B. The Balance of Harms Weighs Strongly in Favor of a Stay.
The balance of harms also clearly favors a stay pending this Court’s expedited
consideration of defendants’ appeal.
First, the district court’s order contravenes the considered national security
judgment of the President that the admission of certain classes of aliens at this time
to the United States, under the existing screening and visa-issuance procedures, is
not in the national interest. “‘[N]o governmental interest is more compelling than
the security of the Nation.’” Jifry v. FAA, 370 F.3d 1174, 1183 (D.C. Cir. 2004)
(quoting Haig v. Agee, 453 U.S. 280, 307 (1981)). “[T]he 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).
20
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This is particularly true as to predictive judgments about the potential
national security threat posed by a class of aliens. A reviewing court would not be
well-equipped to ascertain the quantum of risk, or what is a reasonable margin of
error in assessing risk. Cf. Oryszak v. Sullivan, 576 F.3d 522, 525-26 (D.C. Cir.
2009) (“Egan teaches plainly that review of the breadth of [the margin of error
acceptable in assessing the security risk posed by an individual] is outside the
authority of a nonexpert body.”) (alteration in original)). Judicial second-guessing
of the President’s national security determination in itself imposes substantial harm
on the federal government and the nation at large.
Second, the injunction imposes irreparable harm by barring enforcement of
the Executive Order in a manner that intrudes heavily on the constitutional
separation of powers. Judicial intrusion on the political branches’ exclusive
authority over the admission of aliens, by violating the separation of powers, in
itself constitutes irreparable injury. See, e.g., Adams v. Vance, 570 F.2d 950, 954
(D.C. Cir. 1978) (vacating preliminary injunction that directed action by the
Secretary of State in foreign affairs, which “deeply intrude[d] into the core
concerns of the executive branch”). Stays of injunctions have repeatedly been
granted to prevent a significant breach of inter-branch comity. See, e.g., INS v.
Legalization Assistance Project, 510 U.S. 1301, 1306 (1993) (O’Connor, J., in
chambers) (staying district court injunction interfering with the federal
21
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government’s execution of immigration statute, noting that injunction was “an
improper intrusion by a federal court into the workings of a coordinate branch of
the Government”); Schweiker v. McClure, 452 U.S. 1301, 1303 (1981) (Rehnquist,
J., in chambers); Committee on Judiciary of U.S. House of Representatives v.
Miers, 542 F.3d 909, 911 (D.C. Cir. 2008).
Furthermore, an order barring the Executive Branch from enforcing a
Presidential Executive Order inherently imposes harm on the public, by thwarting
the legal effect of the public’s chosen representative. Cf. New Motor Vehicle Bd. v.
Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)
(“[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.”); see also
United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 497 (2001)
(recognizing that, in assessing the public interest, a court must heed “the judgment
of Congress, deliberately expressed in legislation,” and “the balance that Congress
has struck”).
Finally, enjoining operative provisions of the Order, which would require
the Executive Branch to treat non-resident aliens’ visas as valid and potentially
would result in their admission into the United States, could cloud the clear legal
and factual distinction between their present status as inadmissible aliens not
22
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lawfully present in the United States, and their desired status as aliens who were
lawfully admitted to this country.
In contrast, the State has not shown that it faces irreparable harm during the
temporary suspension of entries pending the national security review contemplated
by the Order. Furthermore, defendants’ appeal could be significantly expedited in
order to minimize any prejudice to the State.
Given the substantial harms posed by the district court’s order, defendants
also respectfully request that this Court enter an immediate administrative stay
pending consideration of the merits of this motion.
CONCLUSION
For the foregoing reasons, defendants respectfully request that the Court
enter an immediate administrative stay pending consideration of this motion.
Defendants also request that the Court enter a stay pending appeal of the district
court’s February 3, 2017, injunctive order.
23
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Respectfully submitted,

/s/ Noel J. Francisco Acting Assistant Attorney
Acting Solicitor General General
AUGUST E. FLENTJE
Attorney General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON
CATHERINE DORSEY

24
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CERTIFICATE OF SERVICE
I hereby certify that on February 4, 2017, I filed the foregoing motion with
the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system. All participants in the case are registered
CM/ECF users and will be served by the appellate CM/ECF system.
s/ Lowell V. Sturgill Jr.

Lowell V. Sturgill Jr.
Document ID: 0.7.12561.60389

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Motion complies with the type-volume
limitation of Fed. R. App. P. 27 because it contains 5,074 words. This Motion
complies with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using
Word 14-point Times New Roman typeface.

Document ID: 0.7.12561.60389

EXHIBIT A
Executive Order: Protecting the Nation from Foreign

Terrorist Entry into the United States (Jan. 27, 2017)
Document ID: 0.7.12561.60389

Case:
Case
Case Case
2:17-cv-00141-JLR
17-35105,
2:17-cv-00126
1:17-cv-00480 02/04/2017,
Document
DocumentDocument
ID: Filed
2 10302845,
1-11-7Filed
Filed
DktEntry:
01/28/17 01/28/17
01/30/17
Page 14,Page
Page
2 of Page
10 232
of
2 of
10
PageID 10
125
#: 22
THE WHITE HOUSE

Office of the Press Secretary
For Immediate Release

January 27, 2017
EXECUTIVE ORDER
- - - - - - -
PROTECTING THE NATION FROM FOREIGN TERRORIST
ENTRY INTO THE UNITED STATES
By the authority vested in me as President by the
Constitution and laws of the United States of America, including
the Immigration and Nationality Act (INA) , 8 U. S. C. 1101
et seq. , and section 301 of title 3, United States Code, and to
protect the American people from terrorist attacks by foreign
nationals admitted to the United States, it is hereby ordered as
follows:
Section 1. Purpose. The visa-issuance process plays a
crucial role in detecting individuals with terrorist ties and

stopping them from entering the United States. Perhaps in no
instance was that more apparent than the terrorist attacks of
September 11, 2001, when State Department policy prevented
consular officers from properly scrutinizing the visa
applications of several of the 19 foreign nationals who went on
to murder nearly 3, 000 Americans. And while the visa-issuance
process was reviewed and amended after the September 11 attacks
to better detect would-be terrorists from receiving visas, these
measures did not stop attacks by foreign nationals who were
admitted to the United States.
Numerous foreign-born individuals have been convicted or
implicated in terrorism-related crimes since September 11, 2001,
including foreign nationals who entered the United States after
receiving visitor, student, or employment visas, or who entered
through the United States refugee resettlement program.
Deteriorating conditions in certain countries due to war,
strife, disaster, and civil unrest increase the likelihood that
terrorists will use any means possible to enter the United
States. The United States must be vigilant during the visa-
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issuance process to ensure that those approved for admission
do not intend to harm Americans and that they have no ties to
terrorism.
In order to protect Americans, the United States must
ensure that those admitted to this country do not bear hostile
attitudes toward it and its founding principles. The United
States cannot, and should not, admit those who do not support
the Constitution, or those who would place violent ideologies
over American law. In addition, the United States should not
admit those who engage in acts of bigotry or hatred (including
"honor" killings, other forms of violence against women, or the
persecution of those who practice religions different from their
own) or those who would oppress Americans of any race, gender,
or sexual orientation.
Sec. 2. Policy. It is the policy of the United States to
protect its citizens from foreign nationals who intend to commit
terrorist attacks in the United States; and to prevent the
admission of foreign nationals who intend to exploit United
States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other
Immigration Benefits to Nationals of Countries of Particular
Concern. (a) The Secretary of Homeland Security, in
consultation with the Secretary of State and the Director of
National Intelligence, shall immediately conduct a review to
determine the information needed from any country to adj udicate
any visa, admission, or other benefit under the INA
(adj udications) in order to determine that the individual
seeking the benefit is who the individual claims to be and is
not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation
with the Secretary of State and the Director of National
Intelligence, shall submit to the President a report on the
results of the review described in subsection (a) of this
section, including the Secretary of Homeland Security' s
determination of the information needed for adj udications and a
list of countries that do not provide adequate information,
within 30 days of the date of this order. The Secretary of
Homeland Security shall provide a copy of the report to the
Secretary of State and the Director of National Intelligence.
(c) 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
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maximum utilization of available resources for the screening of
foreign nationals, and to ensure that adequate standards are
established to prevent infiltration by foreign terrorists or
criminals, pursuant to section 212(f) of the INA, 8 U. S. C.
1182(f) , I hereby proclaim that the immigrant and nonimmigrant
entry into the United States of aliens from countries referred
to in section 217(a) (12) of the INA, 8 U. S. C. 1187(a) (12) , would
be detrimental to the interests of the United States, and I
hereby suspend entry into the United States, as immigrants and
nonimmigrants, of such persons for 90 days from the date of this
order (excluding those foreign nationals traveling on diplomatic
visas, North Atlantic Treaty Organization visas, C-2 visas for
travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) .
(d) Immediately upon receipt of the report described in
subsection (b) of this section regarding the information needed
for adj udications, the Secretary of State shall request all
foreign governments that do not supply such information to start
providing such information regarding their nationals within
60 days of notification.
(e) After the 60-day period described in subsection (d) of
this section expires, the Secretary of Homeland Security, in
consultation with the Secretary of State, shall submit to the
President a list of countries recommended for inclusion on a
Presidential proclamation that would prohibit the entry of
foreign nationals (excluding those foreign nationals traveling
on diplomatic visas, North Atlantic Treaty Organization visas,
C-2 visas for travel to the United Nations, and G-1, G-2, G-3,
and G-4 visas) from countries that do not provide the
information requested pursuant to subsection (d) of this section
until compliance occurs.
(f) At any point after submitting the list described in
subsection (e) of this section, the Secretary of State or the
Secretary of Homeland Security may submit to the President the
names of any additional countries recommended for similar
treatment.
(g) Notwithstanding a suspension pursuant to subsection
(c) of this section or pursuant to a Presidential proclamation
described in subsection (e) of this section, the Secretaries of
State and Homeland Security may, on a case-by-case basis, and
when in the national interest, issue visas or other immigration
benefits to nationals of countries for which visas and benefits
are otherwise blocked.
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(h) The Secretaries of State and Homeland Security shall
submit to the President a j oint report on the progress in
implementing this order within 30 days of the date of this
order, a second report within 60 days of the date of this order,
a third report within 90 days of the date of this order, and a
fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All
Immigration Programs. (a) The Secretary of State, the
Secretary of Homeland Security, the Director of National
Intelligence, and the Director of the Federal Bureau of
Investigation shall implement a program, as part of the
adj udication process for immigration benefits, to identify
individuals seeking to enter the United States on a fraudulent
basis with the intent to cause harm, or who are at risk of
causing harm subsequent to their admission. This program will
include the development of a uniform screening standard and
procedure, such as in-person interviews; a database of identity
documents proffered by applicants to ensure that duplicate
documents are not used by multiple applicants; amended
application forms that include questions aimed at identifying
fraudulent answers and malicious intent; a mechanism to ensure
that the applicant is who the applicant claims to be; a process
to evaluate the applicant' s likelihood of becoming a positively
contributing member of society and the applicant' s ability to
make contributions to the national interest; and a mechanism to
assess whether or not the applicant has the intent to commit
criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conj unction
with the Secretary of State, the Director of National
Intelligence, and the Director of the Federal Bureau of
Investigation, shall submit to the President an initial report
on the progress of this directive within 60 days of the date of
this order, a second report within 100 days of the date of this
order, and a third report within 200 days of the date of this
order.
Sec. 5. Realignment of the U. S. Refugee Admissions Program
for Fiscal Year 2017. (a) The Secretary of State shall suspend
the U. S. Refugee Admissions Program (USRAP) for 120
days. During the 120-day period, the Secretary of State, in
conj unction with the Secretary of Homeland Security and in
consultation with the Director of National Intelligence, shall
review the USRAP application and adj udication process to
determine what additional procedures should be taken to ensure
that those approved for refugee admission do not pose a threat
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to the security and welfare of the United States, and shall
implement such additional procedures. Refugee applicants who
are already in the USRAP process may be admitted upon the
initiation and completion of these revised procedures. Upon the
date that is 120 days after the date of this order, the
Secretary of State shall resume USRAP admissions only for
nationals of countries for which the Secretary of State, the
Secretary of Homeland Security, and the Director of National
Intelligence have j ointly determined that such additional
procedures are adequate to ensure the security and welfare of
the United States.
(b) Upon the resumption of USRAP admissions, the Secretary
of State, in consultation with the Secretary of Homeland
Security, is further directed to make changes, to the extent
permitted by law, 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. Where
necessary and appropriate, the Secretaries of State and Homeland
Security shall recommend legislation to the President that would
assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U. S. C.
1182(f) , I hereby proclaim that the entry of nationals of Syria
as refugees is detrimental to the interests of the United States
and thus suspend any such entry until such time as I have
determined that sufficient changes have been made to the USRAP
to ensure that admission of Syrian refugees is consistent with
the national interest.
(d) Pursuant to section 212(f) of the INA, 8 U. S. C.
1182(f) , I hereby proclaim that the entry of more than 50, 000
refugees in fiscal year 2017 would be detrimental to the
interests of the United States, and thus suspend any such entry
until such time as I determine that additional admissions would
be in the national interest.
(e) Notwithstanding the temporary suspension imposed
pursuant to subsection (a) of this section, the Secretaries of
State and Homeland Security may j ointly determine to admit
individuals to the United States as refugees on a case-by-case
basis, in their discretion, but only so long as they determine
that the admission of such individuals as refugees is in the
national interest -- including when the person is a religious
minority in his country of nationality facing religious
persecution, when admitting the person would enable the United
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States to conform its conduct to a preexisting international
agreement, or when the person is already in transit and denying
admission would cause undue hardship -- and it would not pose a
risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President
an initial report on the progress of the directive in subsection
(b) of this section regarding prioritization of claims made by
individuals on the basis of religious-based persecution within
100 days of the date of this order and shall submit a second
report within 200 days of the date of this order.

(g) It is the policy of the executive branch that, to the
extent permitted by law and as practicable, State and local
j urisdictions be granted a role in the process of determining
the placement or settlement in their j urisdictions of aliens
eligible to be admitted to the United States as refugees. To
that end, the Secretary of Homeland Security shall examine
existing law to determine the extent to which, consistent with
applicable law, State and local j urisdictions may have greater
involvement in the process of determining the placement or
resettlement of refugees in their j urisdictions, and shall
devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to
the Terrorism Grounds of Inadmissibility. The Secretaries of
State and Homeland Security shall, in consultation with the
Attorney General, consider rescinding the exercises of authority
in section 212 of the INA, 8 U. S. C. 1182, relating to the
terrorism grounds of inadmissibility, as well as any related
implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit
Tracking System. (a) The Secretary of Homeland Security shall
expedite the completion and implementation of a biometric entry-

exit tracking system for all travelers to the United States, as
recommended by the National Commission on Terrorist Attacks Upon
the United States.
(b) The Secretary of Homeland Security shall submit to the
President periodic reports on the progress of the directive
contained in subsection (a) of this section. The initial report
shall be submitted within 100 days of the date of this order, a
second report shall be submitted within 200 days of the date of
this order, and a third report shall be submitted within 365
days of the date of this order. Further, the Secretary shall
submit a report every 180 days thereafter until the system is
fully deployed and operational.
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Sec. 8. Visa Interview Security. (a) The Secretary of
State shall immediately suspend the Visa Interview Waiver
Program and ensure compliance with section 222 of the INA,
8 U. S. C. 1222, which requires that all individuals seeking a
nonimmigrant visa undergo an in-person interview, subj ect to
specific statutory exceptions.
(b) To the extent permitted by law and subj ect to the
availability of appropriations, the Secretary of State shall
immediately expand the Consular Fellows Program, including by
substantially increasing the number of Fellows, lengthening or
making permanent the period of service, and making language
training at the Foreign Service Institute available to Fellows
for assignment to posts outside of their area of core linguistic
ability, to ensure that non-immigrant visa-interview wait times
are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State
shall review all nonimmigrant visa reciprocity agreements to
ensure that they are, with respect to each visa classification,
truly reciprocal insofar as practicable with respect to validity
period and fees, as required by sections 221(c) and 281 of the
INA, 8 U. S. C. 1201(c) and 1351, and other treatment. If a
country does not treat United States nationals seeking
nonimmigrant visas in a reciprocal manner, the Secretary of
State shall adj ust the visa validity period, fee schedule, or
other treatment to match the treatment of United States
nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To
be more transparent with the American people, and to more
effectively implement policies and practices that serve the
national interest, the Secretary of Homeland Security, in
consultation with the Attorney General, shall, consistent with
applicable law and national security, collect and make publicly
available within 180 days, and every 180 days thereafter:
(i) information regarding the number of foreign
nationals in the United States who have been charged
with terrorism-related offenses while in the United
States; convicted of terrorism-related offenses while
in the United States; or removed from the United
States based on terrorism-related activity,
affiliation, or material support to a terrorism-

related organization, or any other national security
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reasons since the date of this order or the last
reporting period, whichever is later;
(ii) information regarding the number of foreign
nationals in the United States who have been
radicalized after entry into the United States and
engaged in terrorism-related acts, or who have
provided material support to terrorism-related
organizations in countries that pose a threat to the
United States, since the date of this order or the
last reporting period, whichever is later; and
(iii) information regarding the number and types of
acts of gender-based violence against women, including
honor killings, in the United States by foreign
nationals, since the date of this order or the last
reporting period, whichever is later; and
(iv) any other information relevant to public safety
and security as determined by the Secretary of
Homeland Security and the Attorney General, including
information on the immigration status of foreign
nationals charged with maj or offenses.
(b) The Secretary of State shall, within one year of the
date of this order, provide a report on the estimated long-term
costs of the USRAP at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order
shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive
department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of
Management and Budget relating to budgetary,
administrative, or legislative proposals.
(b) This order shall be implemented consistent with
applicable law and subj ect to the availability of
appropriations.
(c) This order is not intended to, and does not, create
any right or benefit, substantive or procedural, enforceable at

law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or
agents, or any other person.
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DONALD J. TRUMP
THE WHITE HOUSE,

January 27, 2017.
# # #
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EXHIBIT B
Louhghalam v. Trump, Civ. 17-10154-NMG, Order
(Feb. 3, 2017)
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United States District Court
District of Massachusetts
Arghavan Louhghalam et al. )
Plaintiffs, )
v. ) Civil Action No.
) 17-10154-NMG
Donald J. Trump, President of )

the United States, et al. )
Defendants. )
MEMORANDUM & ORDER
GORTON, J.
This Court was initially asked 1) to issue a writ of habeas
corpus on behalf of by Arghavan Louhghalam and Mazdak
Pourabdollah Tootkaboni, lawful permanent residents who were
detained at Boston Logan International Airport (“Logan”) for
several hours upon arrival from an academic conference outside
the United States and 2) to declare unlawful Executive Order
13,769, promulgated by the President of the United States.
Late in the evening on January 28, 2017, United States
District Judge Allison D. Burroughs and United States Magistrate
Judge Judith G. Dein held a hearing on a motion of Louhghalam
and Tootkaboni for a temporary restraining order. Following
that hearing, Judge Burroughs and Magistrate Judge Dein entered
a temporary restraining order (“TRO”) that, inter alia,
prohibits the detention and/or removal of individuals with
-1-
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approved refugee applications who would be legally admitted to
the United States in absence of the Executive Order. That TRO
is set to expire on Sunday, February 5, 2017.
Following entry of the TRO a flurry of activity has
resulted in the filing of an amended complaint wherein five
other Iranian nationals and Oxfam America, Inc. are named as
additional plaintiffs and the allowance of a motion by the
Commonwealth of Massachusetts and the University of
Massachusetts to intervene as plaintiffs. Now pending before
this session is the informal motion of all of the plaintiffs to
continue in force the subject TRO which defendant opposes. Oral
argument on that motion was heard earlier today.
I. Background
A. The Parties
Habeas petitioners Tootkaboni and Louhghalam are Iranian
nationals, Muslim and lawful permanent residents of the United
States. Both are currently employed as Associate Professors at
the University of Massachusetts-Dartmouth. They were each
detained for nearly four hours at Logan Airport on January 28,
2017, without access to counsel, after returning from an
academic conference outside the country.
The five other individual plaintiffs are Iranian nationals
and Muslim. Three of them, Babak Yaghoubi Moghadam, his sister,
Fatemeh Yaghoubi Moghadam, and Ali Sanie are also lawful
-2-
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permanent residents. Plaintiffs Zahrasadat Mirrazi Renani and
Leily Amirsardary are in the United States on valid F-1 student
visas. Plaintiff Oxfam America Inc. is a subsidiary of a world-
wide non-profit organization that promotes policy reform in the
United States and abroad with respect to global poverty.
Defendants in this case are President of the United States,
Donald J. Trump, United States Customs and Border Protection
(“CBP”), Kevin K. McAleen, the Acting Commissioner of the CBP,
William Mohalley, the Boston Field Director of the CPB, and the
Department of Homeland Security and its Secretary, John Kelly.
Each individual defendant is sued in his official capacity.
B. The Executive Order
On January 27, 2017, the President of the United States
Donald J. Trump, issued Executive Order No. 13,769 entitled
“Protecting the Nation from Foreign Terrorist Entry into the
United States” (“EO”). The EO directs changes to the policy and
process of admitting non-citizens into the United States
purportedly to protect national security and to provide a period
of review for relevant agencies to evaluate current procedures
and to propose and implement new procedures.
The changes in immigration procedure relevant to this
action are as follows. The EO suspends for 90 days entry of
immigrants and non-immigrants from seven countries: Iraq, Iran,
Libya, Somalia, Sudan, Syria and Yemen. Exec. Order 13,769
-3-
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§ 3(c). The EO also suspends, for 120 days, the United States
Refugee Admission Program (“USRAP”). Id. § 5(b). The order
directs, after the suspension on USRAP ends, that the Secretary
of State prioritize applicants 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.
On February 1, 2017, White House counsel issued a
clarification to the Acting Secretary of State, the Attorney
General and the Secretary of Homeland Security that Sections
3(c) and 3(e) do not apply to lawful permanent residents.
C. The Immigration and Nationality Act
The Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1101 et seq., was originally enacted in 1952 and has been
-- ----
amended several times, including in 1996 by the Illegal
Immigration Reform and Immigrant Responsibility Act (“IIRIRA”).
The INA governs immigration, naturalization, refugee assistance
and removal procedures and defines the circumstances that govern
the admission of aliens into the United States.
The relevant provision of the INA provides that:
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
-4-
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entry of aliens any restrictions he may deem to be
appropriate.
8 U.S.C. § 1182(f).
D. Procedural History
As described above, petitioners Tootkaboni and Louhghalam
filed a writ of habeas corpus on January 28, 2017. In the
middle of a weekend night, following a hearing, Judge Burroughs
and Magistrate Judge Dein, the assigned emergency district and
magistrate judges, respectively, entered a TRO preventing
individuals subject to the EO from being detained or removed
upon arrival at Logan. The TRO also directed petitioners to
file an amended complaint and scheduled a hearing to occur prior
to the expiration of that order. The matter was randomly
assigned to this judicial officer who, accordingly, scheduled a
hearing with respect to the continuance of the TRO.
II. Continuance of the TRO
A. Legal Standard
In order to obtain a preliminary injunction or temporary
restraining order, the moving party must establish 1) a
reasonable likelihood of success on the merits, 2) the potential
for irreparable harm if the injunction is withheld, 3) a
favorable balance of hardships and 4) the effect on the public
interest. Jean v. Mass. State Police, 492 F.3d 24, 26-27 (1st
Cir. 2007); Quincy Cablesys., Inc. v. Sully’s Bar, Inc., 640 F.
-5-
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Supp. 1159, 1160 (D. Mass. 1986). Of these factors, the
likelihood of success on the merits “normally weighs heaviest on
the decisional scales.” Coquico, Inc. v. Rodriguez-Miranda, 562
F.3d 62, 66 (1st Cir. 2009).
The Court may accept as true “well-pleaded allegations [in
the complaint] and uncontroverted affidavits.” Rohm & Haas Elec.
Materials, LLC v. Elec. Circuits, 759 F. Supp. 2d 110, 114, n.2
(D. Mass. 2010) (quoting Elrod v. Burns, 427 U.S. 347, 350, n.1
(1976)). The Court may also rely on otherwise inadmissible
evidence, including hearsay. See Asseo v. Pan Am. Grain Co.,
Inc., 805 F.2d 23, 26 (1st Cir. 1986). Ultimately, the issuance
of preliminary injunctive relief is “an extraordinary and
drastic remedy that is never awarded as of right.” Peoples Fed.
Sav. Bank v. People’s United Bank, 672 F.3d 1, 8-9 (1st Cir.
2012) (quoting Voice of the Arab World, Inc. v. MDTV Med. News
Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011)).
The Court may extend temporary injunctive relief upon a
showing of good cause. Fed. R. Civ. P. 65(b)(2).
B. Application
1. The claims for injunctive relief by the lawful
permanent residents
On February 1, 2017, the White House distributed a
memorandum to the Acting Secretary of State, the Acting Attorney
General and the Secretary of Homeland Security clarifying that
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Sections 3(c) and 3(e) of the EO do not apply to lawful
permanent residents.
That memorandum comports with the language of the Section
3(c) which temporarily suspends “entry” of aliens from the seven
subject countries. Upon returning to the United States, lawful
permanent residents do not, however, typically “enter” the
country for purposes of the INA.
Although “entry” is no longer defined in the INA, it has
been replaced with the term “admission,” which is defined as
the lawful entry of the alien into the United States after
inspection and authorization by an immigration officer.
8 U.S.C. § 1101(a)(13)(A) (emphasis added); see also Vartelas v.
Holder, 556 U.S. 257, 263 (2012) (explaining that Congress made
“admission” the “key word” and removed the definition of “entry”
from the statute).
Under the INA, lawful permanent residents are regarded as
seeking admission, i.e. entry, into the United States only if
they fall within six categories, including inter alia, being
absent from the United States for 180 days or more. See id.; 8
U.S.C. § 1101(a)(13)(c).
Therefore, the use of the term “entry” in Section 3(c)
indicates that the suspension was not intended to be applied to
lawful permanent residents.
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In light of the government’s clarification that the EO will
not be applied to lawful permanent residents, the claims for
injunctive relief by plaintiffs Louhghalam, Tootkaboni, Sanie,
Fatemeh Moghadam and Babak Moghadam are moot. With respect to
those individuals, there is “no ongoing conduct to enjoin”. Town
of Portsmouth v. Lewis, 813 F.3d 54, 58 (1st Cir. 2016). Thus,
any declaration with respect to the lawfulness of the EO would
be strictly advisory. See New Eng. Reg’l Council of Carpenters
v. Kinton, 284 F.3d 9, 18 (1st Cir. 2002) (remarking that it
would be “pointless” to declare the constitutionality of a
policy that had been revised during litigation).
Although the claims by the lawful permanent resident
plaintiffs for injunctive relief are moot, the claims for
injunctive relief by plaintiffs Renani and Amirsardary, holders
of F-1 visas, and Oxfam are not covered by that clarification
and thus the Court will address the merits of their claims for
injunctive relief.
2. The claims for injunctive relief by the
plaintiffs who hold F-1 Visas
a. Count I: Equal Protection claim
The Fifth Amendment protects aliens within the United
States from “invidious discrimination by the Federal
Government.” Plyler v. Doe, 457 U.S. 202, 210 (1982) (quoting
Mathews v. Diaz, 426 U.S. 67, 77); see also Yick Wo v. Hopkins,
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118 U.S. 356, 369, (1886) (“[Equal Protection is] universal in
[its] application, to all persons within the territorial
jurisdiction, without regard to any differences of race, of
color, or of nationality.”). There is a distinction, however,
between the constitutional rights enjoyed by aliens who have
entered the United States and those who are outside of it. See
Zadvydas v. Davis, 533 U.S. 678, 693 (2001).
The decision to prevent aliens from entering the country is
a “fundamental sovereign attribute” realized through the
legislative and executive branches that is “largely immune from
judicial control.” Chi Thon Ngo v. I.N.S., 192 F.3d 390, 395 (3d
Cir. 1999), amended (Dec. 30, 1999) (quoting Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206, 210 (1953)). Federal
classifications based on alien status are evaluated using
rational basis review. Mathews v. Diaz, 426 U.S. 67, 83 (1976)
(considering whether a law that made distinctions based on alien
status was “wholly irrational”); Ruiz-Diaz v. United States, 703
F.3d 483, 486–87 (9th Cir. 2012)(determining that a regulation
that treated immigrant religious workers differently than other
visa applicants would be evaluated using rational basis review);
Narenji v. Civiletti, 617 F.2d 745, 748 (D.C. Cir. 1979)
(upholding a regulation issued in response to the Iran hostage
crisis that required non-immigrant alien Iranian students to
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provide information to Immigration and Naturalization Services
Offices).
Rational basis review examines whether the “classification
at issue bears some fair relationship to a legitimate public
purpose.” Plyler, 457 U.S. at 216. It is “not a license for
courts to judge the wisdom, fairness, or logic of legislative
choices.” Heller v. Doe by Doe, 509 U.S. 312, 319–20 (1993)
(quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313
(1993)). Under rational basis review, a classification is
permissible “if there is any reasonably conceivable state of
facts that could provide a rational basis.” Id. (quoting Beach
Communications, 508 U.S. at 313).
Plaintiffs contend that the EO discriminates on the basis
of religion and was designed to exclude Muslims from the United
States. They further allege that it singles out citizens of
seven different countries. At oral argument, plaintiffs relied
on “astonishing evidence of intent” from President Trump which,
in their view, demonstrates that EO was “substantially motivated
by improper animus.” See Hunter v. Underwood, 471 U.S. 222, 233
(1985) (holding that a provision in the Alabama Constitution
violated equal protection even through it was facially neutral
because it was motivated by animus). Defendants responded that
the cases examining improper animus involve equal protection
claims against states, which may be reviewed with strict
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scrutiny, while the federal government classification of non-
resident aliens in this case is subject to rational basis
review.
Because the EO involves federal government categorizations
with respect to non-resident aliens, rational basis review
applies. According to the EO, its purpose is
to ensure the proper review and maximum utilization of
available resources for the screening of foreign nationals,
and to ensure that adequate standards are established to
prevent infiltration by foreign terrorists . . . .
Exec. Order 13,769 § 3(c). The EO specifically asserts that
permitting aliens from the countries identified in section
217(a) of the INA, 8 U.S.C. § 1187(a)(12), to enter “would be
detrimental to the United States.” The order provides a
reasonably conceivable state of facts [which concerns
national security and] that could provide a rational basis
for the classification. Heller, 509 U.S. at 319–20.
Accordingly, this Court declines to encroach upon the “delicate
policy judgment” inherent in immigration decisions. Plyler, 457
U.S. at 225.
b. Count II: Establishment Clause claim
With respect to Count II, plaintiffs allege that the
Executive Order violates the Establishment Clause of the United
States Constitution. See U.S. Const. amend. I (“Congress shall
make no law respecting an establishment of religion . . . .”).
Specifically, plaintiffs claim that the EO disfavors Islam and
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favors Christianity. The Court concludes, however, that the
remaining plaintiffs lack standing to raise an Establishment
Clause challenge.
The purported harmful disparate treatment of those two
faiths arises from Section 5(b) of the EO in which the Secretary
of State is directed, upon reinstatement of USRAP, 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 (emphasis added).
To have standing, plaintiffs must allege an injury in fact that
is “concrete and particularized”. Reddy v. Foster, Docket No.
16-1432, 2017 WL 104825, at *4 (1st Cir. Jan. 11, 2017) (quoting
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341
(2014)).
Plaintiffs are not, however, refugees seeking admission to
the United States and consequently, any future implementation of
Section 5(b) would not personally affect them. Although
plaintiffs vigorously disagree with such a policy, that sincere
disagreement is insufficient injury to confer standing. See
Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc., 454 U.S. 464, 485-86 (1982) (“They 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
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conduct with which one disagrees. That is not an injury
sufficient to confer standing under Art. III . . . .” (emphasis
removed)).
Moreover, the language in Section 5 of the EO is neutral
with respect to religion. Plaintiffs submit in their amended
complaint that Section 5 favors Muslims over Christians, in
violation of the Establishment Clause. The provisions of
Section 5, however, could be invoked to give preferred refugee
status to a Muslim individual in a country that is predominately
Christian. Nothing in Section 5 compels a finding that
Christians are preferred to any other group.
c. Count III: Due Process claim
The power to admit or exclude aliens is a sovereign
prerogative” and aliens seeking admission to the United States
request a “privilege.” Landon v. Plasencia, 459 U.S. 21, 32
(1982). It is “beyond peradventure” that “unadmitted and non-
resident aliens” have no right to be admitted to the United
States. Adams v. Baker, 909 F.2d 643, 647 (1st Cir. 1990).
There is no constitutionally protected interest in either
obtaining or continuing to possess a visa. The due process
guaranteed by the Fifth Amendment “attaches only when the
federal government seeks to deny a liberty or property
interest.” Knoetze v. U.S., Dep't of State, 634 F.2d 207, 211
(5th Cir. 1981). A non-citizen has no “inherent property right
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in an immigrant visa.” Azizi v. Thornburgh, 908 F.2d 1130, 1134
(2d Cir. 1990); see also Legal Assistance for Vietnamese Asylum
Seekers v. Dep't of State, Bureau of Consular Affairs, 104 F.3d
1349, 1354 (D.C. Cir. 1997) (holding that aliens “may not assert
a Fifth Amendment right in challenging the procedures for
granting immigrant visas”); Knoetze, 634 F.2d at 212
(concluding that “revocation of an entry visa issued to an alien
already within our country has no effect upon the alien's
liberty or property interests”); De Avilia v. Civiletti, 643
F.2d 471, 477 (7th Cir. 1981) (determining there is “no vested
right in the issuance of a visa”). Thus, because an alien does
not enjoy a property right in a visa, he has no due process
right that protects the manner in which a visa is revoked.
Conversely, because the Due Process Clause safeguards all
“persons” in the United States, once an alien is in this
country, that alien is entitled to Fifth Amendment protection.
Zadvydas, 533 U.S. at 693. It is “well established” that aliens
have cognizable due process interests which must be protected in
deportation hearings. Demore v. Kim, 538 U.S. 510, 523 (2003)
(quoting Reno v. Flores, 507 U.S. 292, 306 (1993)). At a
minimum, before deportation, aliens are entitled to “notice of
the nature of the charges and a meaningful opportunity to be
heard.” Choeum v. I.N.S., 129 F.3d 29, 38 (1st Cir. 1997).
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The plaintiffs who hold F-1 Visas, Ms. Renani and Ms.
Amirsardary (“the F-1 plaintiffs”), contend that the EO violates
their due process rights guaranteed by the Fifth Amendment
because it prevents individuals from the targeted countries from
coming into the United States without any procedural safeguards.
Moreover, they submit that they fear leaving the country because
of concerns about being unable to return. Defendants respond
that such fears are premature because neither of the F-1
plaintiffs has specific travel plans within the next month.
The F-1 plaintiffs have not demonstrated that they are
likely to succeed on the merits of their due process claim. It
is not clear whether the F-1 visas of aliens in the United
States at the time of the EO have been revoked, although
defendants’ counsel stated at the hearing that he thought they
had been. Assuming their visas have been revoked, the F-1
plaintiffs have no property or liberty interest in those visas
and thus no due process claim with respect to the supposed
revocation. Knoetze, 634 F.2d at 212.
Although the F-1 plaintiffs certainly would be protected by
the Due Process Clause in the Fifth Amendment if deportation
proceedings were initiated against them, Demore, 538 U.S. at
523, there is no indication that such proceedings are
forthcoming. Furthermore, while this Court is sympathetic to
the difficult personal circumstances in which these plaintiffs
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find themselves, if they choose to leave the country, as non-
resident aliens, they have no right to re-enter. Landon, 459
U.S. at 32. In sum, because due process protections do not
apply to visas and the F-1 plaintiffs are not currently subject
to deportation proceedings, they have not demonstrated a
likelihood of success on the merits of a due process claim at
this time.
d. Count IV: Administrative Procedure Act
claim
The Court concludes that plaintiffs have not shown a
likelihood of success on the merits with respect to Count IV, in
which plaintiffs allege that the EO violates the Administrative
Procedure Act (“APA”), 5 U.S.C. § 706.
In Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992),
the United States Supreme Court concluded that the Presidency is
not an “agency” as defined in the APA, § 701(b)(1), and thus
actions by the President are not subject to the APA. Courts
have interpreted Franklin to prohibit review under the APA of
actions by the President when he is exercising discretionary
authority. See, e.g., Detroit Int’l Bridge Co. v. Gov’t of
Canada, 189 F. Supp. 3d 85, 104 (D.D.C. 2016).
Here, Congress has granted the President authority to
suspend entry for any class of aliens if such entry would be
“detrimental to the interests of the United States.” 8 U.S.C.
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1182(f). Pursuant to, and without exceeding, that grant of
discretionary authority, the President issued EO 13,769 and
suspended entry of aliens from the seven subject countries. The
President’s action is thus unreviewable under the APA. See
Detroit Int’l Bridge, 189 F. Supp. 3d at 104-05 (concluding that
the President’s decision to allow a permit for an international
bridge was not subject to the APA because he had the authority
to do so under the International Bridge Act of 1972, 33 U.S.C.
§ 535 et seq.).
Because the likelihood of success element is “essential” to
the issuance of an injunction, New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 13-14 (1st Cir. 2002), the Court
will not continue to impose injunctive relief pursuant to Count
IV.
e. Count V: First Amendment claim
Finally, in Count V, Oxfam claims that the EO has violated
its First Amendment rights to freedom of speech, association and
petition by barring entry of aliens, including visa holders,
into the United States.
The United States Supreme Court, in Kleindienst v. Mandel,
408 U.S. 753, 764, 770 (1972), explained that a denial of a visa
to an alien could, under some circumstances, violate a United
States citizen’s First Amendment right “to receive information”.
The Court dismissed plaintiffs’ First Amendment claim, however,
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because the Attorney General provided a “facially legitimate and
bona fide reason” for denying the alien’s visa request. In such
case, the Court continued, lower courts should not
look behind the exercise of that discretion, nor test it by
balancing its justification against the First Amendment
interests of those who seek personal communication with the
applicant.
Id. at 770.
The First Circuit Court of Appeals (“First Circuit”) has
considered the bounds of Kleindienst on two occasions: in
Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988), and in Adams
v. Baker, 909 F.2d 643 (1st Cir. 1990). That Court concluded in
Allende that plaintiffs adequately raised a First Amendment
claim. 845 F.2d at 1116. Conversely, in Adams, it held that
plaintiffs’ did not assert a valid First Amendment challenge.
909 F.2d at 649-50. In both cases, however, the First Circuit
undertook an analysis to determine whether the conduct of the
individual who had been denied a visa fit within the statutory
authority relied upon for those denials.
Here, the President has exercised his broad authority under
8 U.S.C. § 1182(f) to suspend entry of certain aliens
purportedly in order to ensure that resources are available to
review screening procedures and that adequate standards are in
place to protect against terrorist attacks. Exec. Order 13,769
§ 3(c). Such a justification is “facially legitimate and bona
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fide” and therefore Oxfam’s First Amendment rights are not
implicated. See Kleindienst, 408 U.S. at 770 (concluding that
the First Amendment rights of American scholars and students
were not violated when a Belgian scholar whom they invited to
speak was denied entry into the United States).
Although at oral argument plaintiffs directed this Court to
American Academy of Religion v. Napolitano, 573 F.3d 115, 137
(2nd Cir. 2009), which held that a “well supported allegation of
bad faith” could render a decision not bona fide, that is not
the standard in the First Circuit. Therefore, in light of the
“plenary congressional power to make policies and rules for
exclusion of aliens,” Kleindienst, 408 U.S. at 769, which
pursuant to 8 U.S.C. § 1182(f), has been delegated to the
President, the Court concludes that the government’s reasons, as
provided in the EO, are facially legitimate and bona fide.
Consequently, Oxfam has not shown a likelihood of success
with respect to its claim in Count V. See Kleindienst, 408 U.S.
at 770; Adams, 909 F.2d at 650.
f. Other preliminary injunction factors
Moving on to the other three factors considered for a
temporary restraining order, Jean v. Mass. State Police, 492
F.3d 24, 26-27 (1st Cir. 2007), the potential for irreparable
harm weighs in favor of plaintiffs. The harm of being forced to
choose between visiting loved ones, participating in a
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prestigious doctoral program or founding a business, on the one
hand, and staying in this country out of fear of being denied
re-entry is painful to contemplate. Oxfam faces some less life-
size challenges but they are important nevertheless.
There are considerations on both sides with respect to a
balancing of the hardships. On the one hand, implementing an
effective immigration regime that ensures the safety of all
Americans is undoubtedly difficult. On the other hand, the
hardship to the professional and personal lives of the
individual plaintiffs and to the operation of the Oxfam world-
wide organization is palpable.
Finally, there are public interest considerations on both
sides. The rich immigrant history of the United States has long
been a source of strength and pride in this country. The
individual plaintiffs in this case provide particularly
compelling examples of the value that immigrants add to our
society. Conversely, the public interest in safety and security
in this ever-more dangerous world is strong as well.
When the four factors that the Court must consider before
imposing injunctive relief are considered collectively,
likelihood of success on the merits weighs most heavily in the
decision. Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66
(1st Cir. 2009). Therefore, because plaintiffs have not
demonstrated that they are likely to succeed on the merits of
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any of their claims, an extension of the restraining order at
the present time is not warranted.
ORDER
For the forgoing reasons, the Court declines to impose any
injunctive relief and will not renew the temporary restraining
order that was entered on January 29, 2017 (Docket No. 6).
So ordered.
/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated February 3, 2017
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EXHIBIT C
Temporary Restraining Order (Feb. 3, 2017)
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7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
8 AT SEATTLE
9
STATE OF WASHINGTON, et al., CASE NO. Cl 7-0141JLR
10
Plaintiffs, TEMPORARY RESTRAINING
11 ORDER
v.
12
DONALD J. TRUMP, et al.,
13
Defendants.
14
I. INTRODUCTION
15
Before the court is Plaintiffs State of Washington and State of Minnesota's
16
(collectively, "the States") emergency motion for a temporary restraining order ("TRO").
17
(TRO Mot. (Dlct. ## 3, 19 (as amended)).) The court has reviewed the motion, the
18
complaint (Compl. (Dkt. # 1)), the amended complaint (FAC (Dkt. # 18)), all the
19
submissions of the parties related to the motion, the relevant portions of the record, and
20
the applicable law. In addition, the court heard the argument of counsel on February 3,
21
II
22
ORDER-1
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1 2017. (See Min. Entry (Dkt. # 51).) Having considered all of the foregoing, the court
2 GRANTS the States' motion as set forth below.
3 II. PROCEDURAL BACKGROUND
4 On January 30, 2017, the State of Washington filed a complaint seeking
5 declaratory and injunctive relief against Defendants Donald J. Trump, in his official
6 capacity as President of the United States, the United States Department of Homeland
7 Security ("DHS"), John F. Kelly, in his official capacity as Secretary ofDHS, Tom
8. Shannon, in his official capacity as Acting Secretary of State, and the United States of
9 America (collectively, "Federal Defendants"). (See Compl.) On February 1, 2017, the
10 State of Washington filed an amended complaint adding the State of Minnesota as a
11 plaintiff. (See FAC.) The States seek declaratory relief invalidating portions of the
12 Executive Order of January 27, 2017, entitled "Protecting the Nation from Foreign
13 Terrorist Entry into the United States" ("Executive Order") (see FAC Ex. 7 (attaching a
14 copy of the Executive Order)), and an order enjoining Federal Defendants from enforcing
15 those same portions of the Executive Order. (See generally FAC at 18.)
16 The States are presently before the court seeking a TRO against Federal
17 Defendants. (See generally TRO Mot.) The purpose of a TRO is to preserve the status
18 quo before the court holds a hearing on a motion for preliminary injunction. See Granny
19 Goose Foods, Inc. v. Bhd. Of Teamsters & Auto Truck Drivers Local No. 70 ofAlameda
20 City, 415 U.S. 423,439 (1974); Am. Honda Fin. Corp. v. Gilbert Imports, LLC, No.
21 CV-13-5015-EFS, 2013 WL 12120097, at *3 (E.D. Wash. Feb. 22, 2013) ("The purpose
22 //
ORDER-2
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1 of a TRO is to preserve the status quo until there is an opportunity to hold a hearing on
2 the application for a preliminary injunction .... ") (internal quotation marks omitted).
3 Federal Defendants oppose the States' motion. (See generally Resp. (Dkt. # 50).)
4 III. FINDINGS OF FACT & CONCLUSIONS OF LAW
5 As an initial matter, the court finds that it has jurisdiction over Federal Defendants
6 and the subject matter of this lawsuit. The States' efforts to contact Federal Defendants
7 reasonably and substantially complied with the requirements of Federal Rule of Civil
8 Procedure 65(b). See Fed. R. Civ. P. 65(b). Indeed, Federal Defendants have appeared,
9 argued before the court, and defended their position in this action. (See Not. of App.
10 (Dkt. ## 20, 21); Min. Entry; see generally Resp.;)
11 The standard for issuing a TRO is the same as the standard for issuing a
12 preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434
13 U.S. 1345, 1347 n.2 (1977). A TRO is "an extraordinary remedy that may only be
14 awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Nat.
15 Res. Def Council, Inc., 555 U.S. 7, 24 (2008). "The proper legal standard for
16 preliminary injunctive relief requires a party to demonstrate (1) 'that he is likely to
17 succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of
18 preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an
19 injunction is in the public interest."' Stormans, Inc. v. Selecky, 586 F .3d 1109, 1127 (9th
20 Cir. 2009) (citing Winter, 555 U.S. at 20).
21 As an alternative to this test, a preliminary injunction is appropriate if "serious
22 questions going to the merits were raised and the balance of the hardships tips sharply in
ORDER-3
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1 the plaintiffs favor," thereby allowing preservation of the status quo when complex legal
2 questions require further inspection or deliberation. All. for the Wild Rocldes v. Cottrell,
3 632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the "serious questions" approach
4 supports the court's entry of a TRO only so long as the plaintiff also shows that there is a
5 likelihood of irreparable injury and that the injunction is in the public interest. Id. at
6 113 5. The moving party bears the burden of persuasion and must make a clear showing
7 that it is entitled to such relief. Winter, 555 U.S. at 22.
8 The court finds that the States have satisfied these standards and that the court
9 should issue a TRO. The States have satisfied the Winter test because they have shown
10 that they are likely to succeed on the merits of the claims that would entitle them to relief;
11 the States are likely to suffer irreparable harm in the absence of preliminary relief; the
12 balance of the equities favor the States; and a TRO is in the public interest. The court
13 also finds that the States have satisfied the "alternative" Cottrell test because they have
14 established at least serious questions going to the merits of their claims and that the
15 balance of the equities tips sharply in their favor. As the court noted for the Winter test,
16 the States have also established a likelihood of irreparable injury and that a TRO is in the
17 public interest.
18 Specifically, for purposes of the entry of this TRO, the court finds that the States
19 have met their burden of demonstrating that they face immediate and irreparable injury as
20 a result of the signing and implementation of the Executive Order. The Executive Order
21 adversely affects the States' residents in areas of employment, education, business,
22 family relations, and freedom to travel. These harms extend to the States by virtue of
ORDER-4
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1 their roles as parens patriae of the residents living within their borders. In addition, the
2 States themselves are harmed by virtue of the damage that implementation of the
3 Executive Order has inflicted upon the operations and missions of their public
4 universities and other institutions of higher learning, as well as injury to the States'
5 operations, tax bases, and public funds. These harms are significant and ongoing .
.6 Accordingly, the court concludes that a TRO against Federal Defendants is necessary
7 until such time as the court can hear and decide the States' request for a preliminary
8 injunction.
9 IV. TEMPORARY RESTRAINING ORDER
10 It is hereby ORDERED that:
11 1. Federal Defendants and all their respective officers, agents, servants,
12 employees, attorneys, and persons acting in concert or participation with them
13 are hereby ENJOINED and RESTRAINED from:
14 (a) Enforcing Section 3(c) of the Executive Order;
15 (b) Enforcing Section 5(a) of the Executive Order;
16 (c) Enforcing Section 5(b) of the Executive Order or proceeding with any
17 action that prioritizes the refugee claims of certain religious minorities;
18 (d) Enforcing Section 5(c) of the Executive Order;
19 (e) Enforcing Section 5(e) of the Executive Order to the extent Section 5(e)
20 purports to prioritize refugee claims of certain religious minorities.
21 2. This TRO is granted on a nationwide basis and prohibits enforcement of
22 Sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order (as described in
ORDER-5
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1 the above paragraph) at all United States borders and ports of entry pending
2 further orders from this court. Although Federal Defendants argued that any
3 TRO should be limited to the States at issue (see Resp. at 30), the resulting
4 partial implementation of the Executive Order "would undermine the
5 constitutional imperative of 'a uniform Rule of Naturalization' and Congress's
6 instruction that 'the immigration laws of the United States should be enforced
7 vigorously and uniformly."' Texas v. United States, 809 F.3d 134, 155 (5th
8 Cir. 2015) (footnotes omitted) (quoting U.S. CONST. art. I,§ 8, cl. 4
9 (emphasis added) and Immigration and Reform Control Act of 1986, Pub. L.
1
10 No. 99-603, § 115(1), 100 Stat. 3359, 3384 (emphasis added)).
11 3. No security bond is required under Federal Rule of Civil Procedure 65(c).
12 4. Finally, the court orders the parties to propose a briefing schedule and noting
13 date with respect to the States' motion for a preliminary injunction no later
14 than Monday, February 6, 2017 at 5:00 p.m. The court will promptly schedule
15 a hearing on the States' motion for a preliminary injunction, if requested and
16 necessary, following receipt of the parties' briefing.
17 v. CONCLUSION
18 Fundamental to the work of this court is a vigilant recognition that it is but one of
19 three equal branches of our federal government. The work of the court is not to create
20 policy or judge the wisdom of any particular policy promoted by the other two branches.
21
1
An equally divided Supreme Court affirmed Texas v. United States, 809 F.3d 134, in
22 United States v. Texas, --- U.S.----, 136 S. Ct. 2271 (2016) (per curiam).
ORDER-6
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1 That is the work of the legislative and executive branches and of the citizens of this
2 country who ultimately exercise democratic control over those branches. The work of the
3 Judiciary, and this court, is limited to ensuring that the actions taken by the other two
4 branches comport with our country's laws, and more importantly, our Constitution. The
5 narrow question the court is asked to consider today is whether it is appropriate to enter a
6 TRO against certain actions taken by the Executive in the context of this specific lawsuit.
7 Although the question is narrow, the court is mindful of the considerable impact its order
8 may have on the parties before it, the executive branch of our government, and the
9 country's citizens and residents. The court concludes that the circumstances brought
10 before it today are such that it must intervene to fulfill its constitutional role in our tripart
11 government. Accordingly, the court concludes that entry of the above-described TRO is
12 necessary, and the States' motion (Dld. ## 2, 19) is therefore GRANTED.

l<D
13 Dated this '.l_day of February, 2017.
14
JAMES L. ROBART
15 United tates District Judge
16
17
18
19
20
21
22
ORDER-7
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EXHIBIT D
Feb. 1, 2017 Memorandum
Document ID: 0.7.12561.60389

THE WHITE HOUSE
WASHINGTON
February 1, 2017
MEMORANDUM TO THE ACTING SECRETARY OF STATE, THE ACTING ATTORNEY
GENERAL, AND THE SECRETARY OF HOMELAND SECURITY
FROM: Donald F. McGahn II – Counsel to the President
SUBJECT: Authoritative Guidance on Executive Order Entitled “Protecting the Nation from
Foreign Terrorist Entry into the United States” (Jan. 27, 2017)
Section 3(c) of the Executive Order entitled “Protecting the Nation from Foreign Terrorist
Entry into the United States” (Jan. 27, 2017) suspends for 90 days the entry into the United States
of certain aliens from countries referred to in section 217(a)(12) of the Immigration and Nationality
Act (INA), 8 U.S.C. 1187(a)(12). Section 3(e) of the order directs the Secretary of Homeland
Security, in consultation with the Secretary of State, to submit to the President a list of countries
recommended for inclusion on a Presidential proclamation that would prohibit the entry of certain
foreign nationals from countries that do not provide information needed to adjudicate visas,
admissions, or other benefits under the INA.
I understand that there has been reasonable uncertainty about whether those provisions
apply to lawful permanent residents of the United States. Accordingly, to remove any confusion,
I now clarify that Sections 3(c) and 3(e) do not apply to such individuals. Please immediately
convey this interpretive guidance to all individuals responsible for the administration and
implementation of the Executive Order.
Document ID: 0.7.12561.60389

EXHIBIT E
Transcript of Hearing before Judge Robart
(Feb. 3, 2017)
Document ID: 0.7.12561.60389

1
UNI TED STATES DI STRI CT COURT
2
WESTERN DI STRI CT OF WASHI NGTON AT SEATTLE
3
_____________________________________________________________
4
)
STATE OF WASHI NGTON and

) C1 7- 001 41 - JLR
5
STATE OF MI NNESOTA,
)
) SEATTLE, WASHI NGTON
6
Pl ai nti ffs,
)
) February 3, 201 7
7
v.
)
) MOTI ON FOR
8
DONALD TRUMP, i n hi s
) TEMPORARY
offi ci al capaci ty as
) RESTRAI NI NG ORDER
9
Presi dent of the Uni ted
)
States; U. S. DEPARTMENT OF
)
1 0
HOMELAND SECURI TY; JOHN F.
)
KELLY, i n hi s offi ci al
)
1 1
capaci ty as Secretary of the
)
Department of Homel and

)
1 2
Securi ty; TOM SHANNON, i n
)
hi s offi ci al capaci ty as
)
1 3
Acti ng Secretary of State;
)
and the UNI TED STATES OF

)
1 4
AMERI CA,
)
1 5
Defendants.
)
1 6
_____________________________________________________________
1 7
VERBATI M REPORT OF PROCEEDI NGS
BEFORE THE HONORABLE JAMES L. ROBART
1 8
UNI TED STATES DI STRI CT JUDGE
_____________________________________________________________
1 9
20
APPEARANCES:
21
22
23
For the Pl ai nti ffs: Noah Purcel l
Col l een Mel ody
24
Assi stant Attorneys General
Offi ce of the Attorney General
25
800 Fi fth Avenue, Sui te 2000
Seattl e, WA 981 04
Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101
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Jacob Campi on
Assi stant Attorney General of
2
Mi nnesota
445 Mi nnesota Street, Sui te 1 1 00
3
St. Paul , MN 551 01
For the Defendants: Mi chel l e Bennett
5
John Tyl er
Tri al Attorneys
6
U. S. Department of Justi ce
Ci vi l Di vi si on
7
Federal Programs Branch
20 Massachusetts Avenue, NW
8
Washi ngton, DC 20530
1 0
1 1
1 2
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1 4
1 5
1 6
1 7
1 8
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21
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THE CLERK: Case No. C1 7- 1 41 , State of Washi ngton
2
versus Donal d J. Trump. Counsel , pl ease make your
3
appearances for the record.
4
MR. PURCELL: Noah Purcel l for the State of
5
Washi ngton, Your Honor.
6
MS. MELODY: I ' m Col l een Mel ody, al so for the state.
7
MR. CAMPI ON: I ' m Jacob Campi on, I ' m an Assi stant
8
Attorney General for the State of Mi nnesota.
9
THE COURT: Wel come.
1 0
MS. BENNETT: Good afternoon, Your Honor, Mi chel l e
1 1
Bennett from the Department of Justi ce for the defendants.
1 2
And wi th me i s my col l eague, al so from the Department of
1 3
Justi ce, John Tyl er.
1 4
THE COURT: Thank you. Counsel , wel come.
1 5
A coupl e of housekeepi ng matters to attend to. We are
1 6
schedul ed to conduct thi s heari ng between 2: 30 and 4 o' cl ock.
1 7
I ' m goi ng to have some very bri ef housekeepi ng matters at the
1 8
start, of whi ch I ' ve al ready used ei ght of my ten al l otted
1 9
mi nutes. The state wi l l go next. I wi l l tel l you that I ' ve
20
gi ven, i n effect, 30 mi nutes to each si de. I f the state
21
wi shes, they can reserve some of thei r ti me for rebuttal .
22
They' re goi ng fi rst. The federal government i s goi ng second.
23
Your prepared remarks, whi ch I ' m sure are al l very
24
thoughtful and qui te hel pful , are goi ng to get swal l owed by
25
questi ons, because I have questi ons that are essenti al to our
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resol uti on of thi s case and I need to get those answered. So
2
be prepared for pretty much an i nterrupti on from the start.
3
And at around 3: 45, havi ng fol l owed the di rect
4
presentati ons, and rebuttal i f the state has ti me l eft,
5
you' re goi ng to hear from the court. I t' s my i ntenti on to
6
oral l y rul e from the bench but i n very concl usory terms. And
7
we wi l l get a wri tten order to fol l ow, so that i f you want to
8
have the Ni nth Ci rcui t grade my homework, you' l l have
9
somethi ng that you can get on fi l e there promptl y.
1 0
So, that wi l l be the order of the day. And I ' m goi ng to
1 1
hear from the state fi rst, pl ease.
1 2
Mr. Purcel l , why don' t we do one other i tem. Techni cal l y
1 3
the moti on that' s before me started off as Docket 3, whi ch
1 4
was excl usi vel y the State of Washi ngton, and i s now Docket
1 5
1 9, whi ch i s both the states of Washi ngton and Mi nnesota.
1 6
We' ve al so had a seri es of requests to fi l e ami cus bri efs,
1 7
and I i ntend to grant those. So I ' m granti ng Docket 26, the
1 8
ACLU; Docket 42, the Servi ce Empl oyees Uni on; Docket 45,
1 9
ami cus fi l ed by the Ami cus Law Professors. Sounds l i ke the
20
Three Ami gos. Let' s see, Docket 46, I may have menti oned, i s
21
the Washi ngton State Labor Counci l . And, fi nal l y, Docket 48,
22
whi ch i s the ami cus, Ameri cans Uni ted For Separati on of
23
Church and State. Those moti ons are granted.
24
Pl ease note that i t' s not a moti on for i nterventi on, i t' s
25
si mpl y authori zati on to fi l e the ami cus bri ef i n thi s
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1
parti cul ar questi on.
2
Mr. Purcel l .
3
MR. PURCELL: Thank you, Your Honor. Good afternoon.
4
I n the weeks si nce Presi dent Trump si gned the Executi ve
5
Order at i ssue here, si x federal j udges around the country
6
have enj oi ned or stayed parts of i t i n response to acti on by
7
parti cul ar pl ai nti ffs, fi ndi ng a l i kel i hood of success on the
8
meri ts of the chal l enges. The states of Washi ngton and
9
Mi nnesota are aski ng you to do the same here today and to
1 0
enj oi n the parts of the order that we chal l enge.
1 1
The order i s i l l egal and i s causi ng seri ous i mmedi ate
1 2
harms to our states, to our state i nsti tuti ons, and to our
1 3
peopl e, and enj oi ni ng the order i s overwhel mi ngl y i n the
1 4
publ i c i nterest. So, you' re fami l i ar, of course, wi th the
1 5
standard for a temporary restrai ni ng order, I won' t waste
1 6
your ti me.
1 7
THE COURT: You can di spense wi th that.
1 8
MR. PURCELL: I want to fi rst address the l i kel i hood
1 9
of success on the meri ts, i ncl udi ng the threshol d i ssues that
20
the government has rai sed, i ncl udi ng standi ng, deference to
21
nati onal securi ty i nterests, and the faci al versus as- appl i ed
22
nature of the chal l enge.
23
THE COURT: Wel l , l et me try and derai l you here.
24
MR. PURCELL: Sure.
25
THE COURT: I ' d l i ke to take thi s i n terms of equal
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1
protecti on fi rst.
2
MR. PURCELL: Okay.
3
THE COURT: And, i n parti cul ar, how does the equal
4
protecti on cl ai m appl y to al l of the order, whi ch i s the
5
1 20- day- part found i n paragraph or Secti on 5A. How does thi s
6
ban di scri mi nate i n any way, or vi ol ate equal protecti on,
7
when i t' s an across- the- board ban?
8
MR. PURCELL: You' re tal ki ng about as to refugees?
9
So, our cl ai m about refugees i s pri mari l y that i t i s
1 0
rel i gi ousl y moti vated di scri mi nati on, and that the order i s,
1 1
i n l arge part, moti vated by rel i gi ous ani mus. So that
1 2
doesn' t requi re us to show that everyone harmed by the order
1 3
i s of a parti cul ar fai th, i t j ust requi res us to show that
1 4
part of the moti vati on for i ssui ng the order was rel i gi ous
1 5
di scri mi nati on.
1 6
THE COURT: Then I ' m goi ng to try to put words i n
1 7
your mouth. Are you tel l i ng me, then, that you are not
1 8
maki ng an equal protecti on chal l enge to the refugee ban?
1 9
MR. PURCELL: I woul d say, Your Honor, that we have a
20
- - I woul d say the focus there i s on the rel i gi ous
21
di scri mi nati on aspect.
22
THE COURT: We' re goi ng to get there next.
23
MR. PURCELL: Okay. Woul d you l i ke me to address
24
that further?
25
THE COURT: No. Let' s move on to my second questi on
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1
on equal protecti on, then.
2
MR. PURCELL: Okay.
3
THE COURT: Do refugees or vi sa hol ders that have
4
never physi cal l y entered the country have equal protecti on
5
ri ghts under the consti tuti on?
6
MR. PURCELL: Your Honor, that i s not the focus of
7
our cl ai m. I thi nk the answer i s probabl y no. But they do
8
have ri ghts to some consti tuti onal protecti ons. And
9
certai nl y thei r fri ends and fami l y who are here - - and we' re
1 0
j ust tal ki ng about refugees now, not al i ens, for exampl e, who
1 1
mi ght have been sponsored by a uni versi ty or somethi ng l i ke
1 2
that to come here.
1 3
THE COURT: Ri ght.
1 4
MR. PURCELL: Our cl ai m i s that - - our cl ai m i s
1 5
pri mari l y focused on the peopl e who are here or have been
1 6
here and l eft, thei r fami l i es, thei r empl oyers and the
1 7
i nsti tuti ons here.
1 8
THE COURT: Al l ri ght. Has any court ever set asi de
1 9
an i mmi grati on l aw or regul ati on on equal protecti on grounds
20
based on rati onal revi ew? I understand i t' s not the
21
centerpi ece, but you' ve pl ed i t and so you' re goi ng to get
22
questi oned about i t.
23
MR. PURCELL: We di d pl ead i t, and that' s j ust fi ne,
24
Your Honor. I was pl anni ng to start thi s morni ng wi th due
25
process - - or thi s afternoon - - but equal protecti on i s j ust
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1
fi ne.
2
I am not aware of an i mmi grati on order bei ng set asi de on
3
equal protecti on grounds. On the other hand, I ' m not aware
4
of any Executi ve Order qui te l i ke thi s one, that there' s so
5
much evi dence, before there' s even been any di scovery, that
6
i t was moti vated by ani mus, rel i gi ousl y targeted, and j ust
7
utterl y di vorced from the stated purposes of the order. And
8
I ' m happy to tal k about that more i n terms of - - the
9
government i s aski ng for an extraordi nary l evel of deference
1 0
here, essenti al l y sayi ng that you can' t real l y l ook at what
1 1
were the real moti ves for the order; you can' t test i ts
1 2
l egal i ty. And we j ust thi nk that' s wrong, l egal l y and
1 3
factual l y.
1 4
And i f you' l l spare me for j ust a mi nute, i ndul ge me for
1 5
j ust a mi nute and l et me - - there' s three - - there' s a l egal
1 6
poi nt and a factual poi nt. The l egal poi nt i s courts often
1 7
revi ew executi ve acti on that has to do wi th nati onal securi ty
1 8
for consti tuti onal vi ol ati ons. I f you l ook at cases l i ke
1 9
Hamdi, Hamdan, Boumediene, the Supreme Court routi nel y
20
revi ews - - you know, those were cases i nvol vi ng enemy
21
combatants bei ng hel d offshore. Here we have a case that
22
l argel y i nvol ves peopl e who have been here, l ong- ti me
23
resi dents who sti l l l i ve here and have l ost ri ghts. And
24
we' re aski ng the court to revi ew that cl ai m.
25
They al so suggest, Your Honor, at page 21 to 22 of thei r
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1
bri ef, based on a case cal l ed Kl eindienst and Kerry v. Din,
2
that you can' t sort of l ook behi nd the stated purposes of the
3
order. They say that i f the Presi dent gi ves a faci al l y
4
l egi ti mate and bona fi de reason for excl udi ng an al i en, the
5
court wi l l not l ook behi nd that reason.
6
But there' s two fundamental probl ems wi th that argument,
7
Your Honor. Fi rst of al l , those cases deal t wi th the
8
Presi dent' s power to excl ude al i ens who were not here, had
9
not been here, and had no ri ght to come back. That i s not
1 0
thi s case, where we have a case i nvol vi ng peopl e who have
1 1
been here, have ri ghts to remai n here and ri ghts to return.
1 2
And i n Justi ce Kennedy and Al i to' s concurri ng opi ni on i n
1 3
that Kerry v. Din case, whi ch i s a control l i ng opi ni on, they
1 4
hel d that they woul d l ook behi nd stated moti ves, even for
1 5
excl usi on of someone who had never been here, i f the
1 6
pl ai nti ff pl ausi bl y al l eged wi th suffi ci ent parti cul ari ty an
1 7
affi rmati ve showi ng of bad fai th. And that' s at 21 41 of the
1 8
Din opi ni on. And the Ni nth Ci rcui t endorsed that standard i n
1 9
the Cardenas opi ni on, 826 F. 3d, 1 1 64.
20
THE COURT: Wel l , l et me stop because we' l l keep i n
21
thi s area.
22
MR. PURCELL: Okay.
23
THE COURT: Do you not see some di sti ncti on between
24
el ecti on campai gn statements and then subsequentl y an
25
el ecti on and then an Executi ve Order whi ch i s i ssued wi th
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1 0
1
comment at the ti me the Executi ve Order i s i ssued? I t seems
2
to me that i t' s a bi t of a reach to say: The Presi dent i s
3
cl earl y anti - Musl i m or anti - I sl am, based on what he sai d i n
4
New Hampshi re i n June.
5
MR. PURCELL: Wel l , Your Honor, i t mi ght go to the
6
wei ght to gi ve the evi dence, I suppose. But I don' t thi nk
7
i t' s sort of off the tabl e, especi al l y gi ven that we' re onl y
8
a week i nto - - wel l , two weeks now, I suppose, but the order
9
was i ssued a week after the campai gn - - wel l , after the
1 0
Presi dent took offi ce.
1 1
THE COURT: I naugurati on.
1 2
MR. PURCELL: After the i naugurati on, I ' m sorry. So
1 3
i t' s not as though those are compl etel y i rrel evant. And
1 4
moreover - - and, agai n, thi s i s before any di scovery - - we
1 5
have the Presi dent' s advi sor sayi ng on nati onal tel evi si on
1 6
that, you know, the Presi dent asked hi m to come up wi th a
1 7
Musl i m ban - - thi s was after the el ecti on - - asked hi m to
1 8
come up wi th a Musl i m ban i n a way that woul d make i t l egal .
1 9
And that that' s what they di d.
20
THE COURT: Does the Executi ve Order menti on the word
21
" I sl ami c" or " Musl i m?" Let' s stay on rel i gi ous grounds.
22
MR. PURCELL: No, i t does not, Your Honor. I t does
23
not. But when we' re argui ng about rel i gi ousl y moti vated
24
targeti ng, agai n, the burden i s not to prove that i t affects
25
every si ngl e person of the I sl ami c fai th. The burden i s to
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1
prove that a desi re to di scri mi nate based on rel i gi on was one
2
moti vati ng factor i n the adopti on of the order.
3
And, agai n, we' re at the pl eadi ng stage, four days after
4
havi ng fi l ed our compl ai nt, no di scovery, and there' s al ready
5
an overwhel mi ng amount of evi dence to suggest that that' s the
6
case, that i t was, at l east i n part, moti vated by rel i gi on.
7
Goi ng back bri efl y j ust to the nati onal securi ty. Part of
8
the evi dence of that, Your Honor, i s that the ti e to the
9
stated purpose of nati onal securi ty i s so tenuous here. I
1 0
mean, the Presi dent apparentl y had not deci ded whether the
1 1
order appl i ed to l awful permanent resi dents before i t was
1 2
i ssued. And there' s 500, 000, roughl y 500, 000 l awful
1 3
permanent resi dents from these seven l i sted countri es i n the
1 4
Uni ted States. Ei ther those peopl e are an enormous threat to
1 5
our safety or they' re not. And they' ve changed thei r mi nd
1 6
about that fi ve ti mes si nce Fri day. You know, fi rst they
1 7
sai d that i t di d appl y to them, and many of those peopl e were
1 8
excl uded from returni ng to the country. Then the Department
1 9
of Homel and Securi ty rei terated that i t appl i ed to them.
20
Then the Secretary sai d that i t di dn' t. And then - - thi s i s
21
al l i n our compl ai nt, by the way - - and then the Whi te House
22
spokesperson sai d i t di d not. And then the Whi te House
23
counsel has now i ssued authori tati ve gui dance, whatever that
24
means, that al though there coul d have been reasonabl e
25
confusi on about what the order meant, i t wasn' t meant to
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1
cover those peopl e.
2
So the poi nt i s, i f they were an enormous securi ty ri sk,
3
you woul d thi nk that they woul d have made up thei r mi nd about
4
that before i ssui ng the order.
5
And the second poi nt, Your Honor - -
6
THE COURT: Wel l , before we l eave that one.
7
MR. PURCELL: Yeah.
8
THE COURT: What do you say to the argument that the
9
seven countri es that were desi gnated - - and I ' l l quote the
1 0
l anguage - - have been desi gnated as, " Countri es the
1 1
government of whi ch has repeatedl y provi ded support for acts
1 2
of i nternati onal terrori sm under 8 U. S. C. 1 1 87. " Woul dn' t
1 3
that provi de a rati onal basi s for the Executi ve Order?
1 4
MR. PURCELL: Your Honor, that woul d provi de a cover,
1 5
i n our vi ew, for - - that was maybe one moti vati ng factor.
1 6
But when you l ook at the standard of provi ng a rel i gi ous
1 7
di scri mi nati on cl ai m, agai n, you can' t j ust accept at face
1 8
val ue the stated purposes. Especi al l y where agai n, before
1 9
there' s even been any di scovery, there' s so much evi dence
20
that i t was not targeted at the concerns stated. I mean, the
21
order appl i es to i nfants, i t appl i es to seni or ci ti zens, i t
22
appl i es to students and facul ty at our state uni versi ti es who
23
have never been accused of any wrongdoi ng.
24
The mai n poi nt I guess I ' m getti ng at here i s that the
25
i dea that you j ust can' t revi ew, can' t revi ew the real
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1
reasons for thi s order, or even ask whether there are real
2
reasons beyond what i s stated, i s j ust not supported by the
3
case l aw. So we' re aski ng you to - - the mai n poi nt i s, the
4
government i s sayi ng you cannot l ook behi nd the stated
5
reasons, and we' re sayi ng that you can. The case l aw doesn' t
6
support that argument that they' re maki ng.
7
THE COURT: Woul d you agree wi th me that i t i s onl y
8
Secti on 5 that menti ons rel i gi on?
9
MR. PURCELL: I t' s onl y Secti on 5 that menti ons
1 0
rel i gi on. We woul d say i t' s not onl y Secti on 5 that i s, i n
1 1
part, moti vated by rel i gi on.
1 2
THE COURT: And the part of that i s thi s resumpti on
1 3
of the refugee program after, I thi nk i t' s 90 days for that
1 4
provi si on. Then i t says, mi nori ty - - " Practi cers of a
1 5
mi nori ty rel i gi on i n a country. " Does your establ i shment
1 6
cl ause cause of acti on then extend beyond Secti on 5?
1 7
MR. PURCELL: I thi nk our establ i shment cl ause cl ai m
1 8
i s focused on that secti on. But I thi nk that both three and
1 9
fi ve are moti vated i n part, our al l egati on i s, by preferri ng
20
one rel i gi ous vi ew over another. The Larson case that' s
21
ci ted i n our bri ef makes cl ear that you don' t need to have a
22
di sti ncti on between named rel i gi ons on the face of the order
23
for i t to be an establ i shment cl ause vi ol ati on. I n that case
24
i t di dn' t name any rel i gi ons. I t j ust set standards for how
25
di fferent rel i gi ous groups woul d qual i fy for a tax exempti on.
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1
And the court sai d that, combi ned wi th the effects on the
2
rel i gi ous groups, was enough.
3
Your Honor, I want to spend some ti me on our due process
4
cl ai m.
5
THE COURT: We' re goi ng to get there.
6
MR. PURCELL: Okay. Excel l ent.
7
THE COURT: Trust me.
8
MR. PURCELL: Okay. And al so standi ng. But i f I
9
coul d turn to the due process cl ai m.
1 0
THE COURT: Wel l , before you go there, l et' s fi ni sh
1 1
establ i shment.
1 2
MR. PURCELL: Okay.
1 3
THE COURT: 5( b) i sn' t i mpl emented for, I thi nk i t' s
1 4
1 00 days.
1 5
MR. PURCELL: Um- hum.
1 6
THE COURT: Why shoul d I take thi s up at thi s ti me,
1 7
as opposed to, i f you' re comi ng back on a moti on for
1 8
prel i mi nary i nj uncti on, deal wi th i t when i t' s somewhat more
1 9
concrete?
20
MR. PURCELL: Wel l , Your Honor, we' re aski ng you to
21
temporari l y restrai n what we thought was a narrow subset of
22
the categori es that we thought were moti vated by these
23
unconsti tuti onal - - that vi ol ated the consti tuti on. I f you
24
want to have further thought about whether - - so we' re
25
suggesti ng that the acti on i tsel f of banni ng the refugees,
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1
and the Syri an refugees i ndefi ni tel y, and the sel ecti on of
2
the countri es, was parti al l y rel i gi ousl y moti vated. I f you
3
want to wai t to rul e on whether 5( b) i tsel f, and that
4
favori ti sm approach goi ng forward i s a consti tuti onal
5
vi ol ati on, I suppose that woul d be fi ne. We' re not - - that
6
does not necessari l y requi re i mmedi ate i nj uncti on. But that
7
i s evi dence, I thi nk that provi si on i s evi dence, of the
8
rel i gi ous underpi nni ngs of the order.
9
THE COURT: Al l ri ght. Why don' t you move on to due
1 0
process, si nce I ' ve used up a fai r chunk of your ti me.
1 1
MR. PURCELL: So I thi nk the most obvi ous way i n
1 2
whi ch the order vi ol ates the consti tuti on i s i ts vi ol ati on of
1 3
the due process cl ause. The due process cl ause protects
1 4
everyone i n thi s country, i ncl udi ng i mmi grants. And a number
1 5
of cases make that cl ear.
1 6
THE COURT: So i s i t your posi ti on that refugees and
1 7
other al i ens who are presentl y outsi de the country are
1 8
covered by due process?
1 9
MR. PURCELL: Your Honor, the Supreme Court has sai d
20
that al i ens who are not i n the country and have never been
21
here, the onl y process they' re enti tl ed to i s what Congress
22
provi des. So we' re not - - agai n, they' re not the focus of
23
our cl ai m. The focus of our cl ai m i s on peopl e who have been
24
here and have, overni ght, l ost the ri ght to travel , l ost the
25
ri ght to vi si t thei r fami l i es, l ost the ri ght to go perform
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1
research, l ost the ri ght to go speak at conferences around
2
the worl d. And al so peopl e who had l i ved here for a l ong
3
ti me and happened to be overseas at the ti me of thi s order,
4
whi ch came wi th no warni ng whatsoever, and suddenl y l ost the
5
ri ght to return to the Uni ted States.
6
So there' s a seri es of cases, and we ci ted some of these
7
i n our bri ef, Your Honor, but I ' d l i ke to - - gi ven that
8
there' s onl y been a short ti me si nce the government' s fi l i ng,
9
I di rect you to cases l i ke Landon v. Pl asencia, 459 U. S. 21 .
1 0
THE COURT: You mi ght want to sl ow down a l i ttl e bi t.
1 1
MR. PURCELL: Sorry. Landon, 459 U. S. 21 , Rosenberg,
1 2
374 U. S. 449, that make very cl ear that peopl e who have l i ved
1 3
here l egal l y for some peri od of ti me and then l eave
1 4
temporari l y, are protected by the due process cl ause i n
1 5
attempti ng to return, and cannot have thei r ri ght to return
1 6
taken away wi thout some sort of process.
1 7
And that' s effecti vel y what happened here to thousands of
1 8
peopl e i n Washi ngton, i ncl udi ng hundreds of students at our
1 9
state uni versi ti es, and facul ty. They j ust overni ght, wi th
20
no process whatsoever, l ost these i mportant ri ghts that they
21
had.
22
Now, the federal government - -
23
THE COURT: A case from your l i st of cases i s
24
Katzenbach, whi ch the government ci tes extensi vel y for the
25
proposi ti on that you' ve l ost that argument.
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1
MR. PURCELL: Ri ght.
2
THE COURT: How do you respond to that?
3
MR. PURCELL: Wel l , they' re wrong, Your Honor, for a
4
number of reasons. Fi rst of al l , so they say we can' t ci te
5
that case because we' re a state. But our cl ai m i s not the
6
state as state, as we made cl ear i n our standi ng bri ef, our
7
cl ai m i s the state as propri etor and the state as parens
8
patriae on behal f of the peopl e of the state. So the state
9
as a propri etor, I thi nk i s the obvi ous way that that
1 0
argument of thei rs i s i ncorrect, Your Honor.
1 1
We are asserti ng the due process ri ghts on behal f of the
1 2
peopl e of the state who are harmed, and on behal f of the
1 3
state i nsti tuti ons that they attend. So, for exampl e, the
1 4
Uni versi ty of Washi ngton and Washi ngton State Uni versi ty, as
1 5
wel l as our communi ty col l eges, are arms of the state. I t' s
1 6
very cl ear under state l aw they' re arms of the state. We sue
1 7
on thei r behal f. And thei r students and facul ty are bei ng
1 8
deni ed due process ri ghts pursuant to thi s order.
1 9
And i f you l ook at cases l i ke Pierce v. Society of
20
Sisters, 268 U. S. 51 0, and the cases ci ted i n footnote three
21
of our standi ng bri ef, i t' s very cl ear that school s and
22
uni versi ti es have standi ng to bri ng chal l enges based on harms
23
to thei r students. So that' s the fi rst way i n whi ch we have
24
standi ng to bri ng a due process cl ai m.
25
Second, Katzenbach, of course, i s before Massachusetts v.
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1
EPA and before the si gni fi cant change i n parens patriae
2
standi ng that that case announced, as detai l ed i n the ami cus
3
bri ef of the l aw professors and as expl ai ned i n
4
Massachusetts v. EPA i tsel f. So the Snapp deci si on, the case
5
out of Puerto Ri co ci ted i n our bri efi ng, makes i t very cl ear
6
that states can bri ng parens patriae cl ai ms asserti ng
7
di scri mi nati on sort of causes of acti on. And then
8
Massachusetts v. EPA makes i t very cl ear that the sort of
9
Katzenbach- Mel l on l i mi tati ons on state standi ng have been
1 0
scal ed back, i f not el i mi nated al together.
1 1
THE COURT: What' s your vi ew of the Fi fth Ci rcui t
1 2
opi ni on i n United States v. Texas?
1 3
MR. PURCELL: Wel l , i t i s a strong basi s for standi ng
1 4
here as wel l . That was pri mari l y an Admi ni strati ve Procedure
1 5
Act cl ai m. And we do have an Admi ni strati ve Procedure Act
1 6
cl ai m here. We di dn' t have space or ti me to bri ef i t i n our
1 7
temporary restrai ni ng order moti on. And I shoul d say there' s
1 8
a number of cl ai ms actual l y, i n our compl ai nt, that we thi nk
1 9
we' re l i kel y to prevai l on, that we j ust di dn' t have ti me or
20
space to bri ef i n the 48 hours and 24 pages of the temporary
21
restrai ni ng order moti on.
22
And that' s one of them, Your Honor. And that case makes
23
very cl ear that the harms to the state that we' re sufferi ng
24
here are suffi ci ent to generate standi ng i n a propri etary
25
capaci ty. There the state was argui ng, essenti al l y, added
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1
dri ver' s l i cense costs that were sort of unspeci fi ed, the
2
exact amount. And here we have cl ai med, very cl earl y, l ost
3
tax revenue, harms to our state uni versi ti es i n terms of
4
wasted money that was spent sponsori ng peopl e to come here
5
and teach and perform research, wasted money that was spent
6
buyi ng ti ckets for peopl e who wi l l no l onger be abl e to go
7
and speak or research at conferences, a wi de range of
8
propri etary harms, Your Honor, that do suffi ce under U. S. v.
9
Texas to show standi ng.
1 0
THE COURT: Let' s go to the I NA cl ai m, and then l eave
1 1
you some ti me to actual l y tal k to me. Do states have a ri ght
1 2
of acti on under Secti on 8 U. S. C. 1 1 52 ( a) ( 1 ) ( A) ?
1 3
MR. PURCELL: Your Honor, I ' m sorry, I honestl y do
1 4
not have a good answer to that questi on. I thi nk we can
1 5
assert - - we shoul d be al l owed to assert the ri ghts of our
1 6
peopl e here as parens patriae who are harmed by
1 7
di scri mi nati on, the nati onal i ty di scri mi nati on embodi ed i n
1 8
thi s order. But the I NA - - I thi nk I woul d say our I NA cl ai m
1 9
pri mari l y suppl ements our other cl ai ms by showi ng that thi s
20
acti on, the Presi dent' s acti on here, i s not endorsed by
21
Congress. I t' s not consi stent wi th congressi onal di recti ves.
22
I t' s actual l y contrary to what Congress has sai d about how
23
these sorts of deci si ons are supposed to be made, whi ch
24
further undermi nes the federal government' s argument to
25
deference to the Presi dent' s deci si onmaki ng i n thi s context.
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1
THE COURT: Al l ri ght. You' ve got ten mi nutes. I
2
won' t ask you any more questi ons.
3
MR. PURCELL: Your Honor, I ' m perfectl y happy to have
4
you ask me questi ons.
5
So I guess, fi rst of al l , I want to overal l emphasi ze that
6
we have two di sti nct bases for standi ng here i n terms of our
7
propri etary i nterests, the harms to the Uni versi ty of
8
Washi ngton, Washi ngton State Uni versi ty, our other state
9
col l eges and uni versi ti es, and then our parens patriae cl ai m.
1 0
Those are real harms i n both senses.
1 1
The federal government real l y has offered no meani ngful
1 2
response to our cl ai ms of propri etary harm to the
1 3
uni versi ti es. I know they' ve cl ai med that tax harms are
1 4
i nsuffi ci ent, i n some of thei r pl eadi ng, but al l the cases
1 5
they ci te predate Massachusetts v. EPA, and they' re
1 6
i nconsi stent wi th, for exampl e, the Fi fth Ci rcui t' s approach
1 7
i n U. S. v. Texas. I f the added cost of i ssui ng dri ver' s
1 8
l i censes i s suffi ci ent to generate standi ng, there' s no
1 9
reason why the l ost revenue of l osi ng vi si tors who woul d come
20
here and spend money shoul d be i nsuffi ci ent to generate
21
standi ng. More revenue versus l ess revenue, i t' s two si des
22
of the same coi n.
23
And as to the uni versi ti es, the federal government cl ai ms
24
that these harms are " i l l usory" because most of the peopl e we
25
al l ege who wi l l be affected actual l y won' t be. But there' s
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1
j ust no evi dence to support that. So they say now - - agai n,
2
thei r posi ti on has changed fi ve ti mes. And I don' t mean any
3
i l l i ntent towards counsel . I know they don' t have any
4
control over thi s. But the federal government' s posi ti on
5
about what the Executi ve Order means has changed repeatedl y
6
si nce the order was i ssued. And so now they say i t protects
7
l ong- term l awful permanent resi dents or doesn' t appl y to
8
them. But that wasn' t thei r i ni ti al posi ti on. And i n any
9
event, we have hundreds of students and facul ty at our
1 0
uni versi ti es who are here on vi sas who - - agai n, overni ght - -
1 1
l ost the ri ght to travel for any number of purposes or to
1 2
return to the country.
1 3
The onl y other poi nt I ' d make, Your Honor, they make much
1 4
of the i dea that thi s i s a faci al chal l enge, we can' t show
1 5
that i t' s i l l egal i n al l appl i cati ons. And that' s i ncorrect,
1 6
Your Honor. The Ni nth Ci rcui t has repeatedl y hel d that when
1 7
- - i n anal yzi ng whether somethi ng i s a faci al or as- appl i ed
1 8
chal l enge, you l ook at whether i t' s a chal l enge to the
1 9
enti rety of the acti on or to parts of i t. And that' s cases
20
l i ke Hoye v. Oakl and, 653 F. 3d 835.
21
Here we' re chal l engi ng onl y parts of the Executi ve Order.
22
I t' s very cl ear that thi s i s an as- appl i ed chal l enge to parts
23
of the order. We don' t need to show i t' s unconsti tuti onal i n
24
every appl i cati on. I apol ogi ze for ci ti ng so many cases,
25
Your Honor, i n oral argument. I don' t normal l y do that.
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22
1
I t' s j ust that, of course, we had no opportuni ty to fi l e a
2
response i n onl y a short peri od of ti me from when they fi l ed.
3
And the l ast thi ng I ' d say, Your Honor, for now - - and
4
then I ' d j ust l i ke to reserve the remai nder of my ti me - - i s
5
that the establ i shment cl ause. The establ i shment cl ause, one
6
of the ori gi nal purposes of i t was to protect the states
7
agai nst the federal government choosi ng a nati onal rel i gi on
8
and i mposi ng i t on the states. So the i dea that the state
9
woul d not have standi ng to chal l enge a nati onal government - -
1 0
wel l , the Presi dent, anyway, expressi ng a preference i s j ust
1 1
- - i t makes no sense.
1 2
And, agai n, you know, I can' t ci te you to a case where a
1 3
state sued the federal government over an establ i shment cause
1 4
vi ol ati on, but I al so can' t ci te you to an Executi ve Order
1 5
ever before qui te l i ke thi s one or the ci rcumstances that we
1 6
are faci ng today.
1 7
So I ' d l i ke to reserve the remai nder of my ti me and j ust
1 8
concl ude by sayi ng, the questi on i s l i kel i hood of success,
1 9
i rreparabl e harm, and the bal ance of equi ti es. We feel we' ve
20
shown a strong l i kel i hood of success, as the other courts
21
have rul ed. And we' d ask you to enj oi n thi s order
22
temporari l y. Thank you, Your Honor.
23
THE COURT: Ms. Bennett, are you argui ng?
24
MS. BENNETT: Yes, Your Honor.
25
THE COURT: Thank you for comi ng. I thought your
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23
1
bri ef was extremel y wel l done. I t was hel pful .
2
MS. BENNETT: Thank you, Your Honor.
3
May i t pl ease the court. Your Honor, for some of the
4
reasons we menti oned we thi nk we have very good reasons why
5
the state i s not l i kel y to prevai l on the meri ts. But I ' d
6
l i ke to start wi th standi ng, whi ch I thi nk di sti ngui shes thi s
7
case from some of the other cases that have been fi l ed around
8
the country.
9
THE COURT: Wel l , l et' s concentrate on standi ng.
1 0
Tel l me why you thi nk that the Fi fth Ci rcui t i s wrong, i n
1 1
what seemed to be fai rl y margi nal ci rcumstances, and they
1 2
strongl y come out, wi thout hesi tati on or doubt, to fi nd
1 3
standi ng?
1 4
MS. BENNETT: Wel l , Your Honor, we do di sagree wi th
1 5
the Fi fth Ci rcui t' s deci si on. Of course we al so thi nk that
1 6
case woul d be di sti ngui shabl e. We di sagree wi th the deci si on
1 7
because we do thi nk i t has to be a parti cul ari zed i mpact on
1 8
the state. I n United States v. Texas, the court found that
1 9
the state i tsel f had i nj ury. I t wasn' t an i nj ury i n i ts
20
parens patriae capaci ty. And i t was basi cal l y that the - -
21
THE COURT: Let me stop you. I n the State of
22
Washi ngton, and I can' t speak to Mi nnesota, but both the
23
Uni versi ty of Washi ngton and Washi ngton State are consi dered
24
parts of the state government. And they' ve ci ted a l i tany of
25
di rect consequences, damages to them. That' s compared to,
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24
1
what, the $1 3. 40 i n Texas for i ssui ng a dri ver' s l i cense?
2
MS. BENNETT: Wel l , Your Honor, i n Texas i t was a
3
monetary i nj ury, ri ght? Here the i nj uri es that the state
4
tal ks about to i ts uni versi ti es, i n parti cul ar, are
5
reputati onal harm or that students won' t come there, that i t
6
wi l l undermi ne thei r di versi ty. They don' t ci te any cases
7
that defi ne l ack of di versi ty at a uni versi ty, or somethi ng
8
l i ke that, even assumi ng they coul d prove that as an i nj ury.
9
THE COURT: I don' t thi nk that' s thei r argument. I
1 0
thi nk they' re tal ki ng about di rect fi nanci al harm i n thei r
1 1
decl arati ons.
1 2
MS. BENNETT: I mean, I don' t read them that way,
1 3
Your Honor. I di dn' t see any sort of cal cul ati ons of
1 4
fi nanci al harm l i ke there were i n Texas. They tal ked about
1 5
facul ty members that mi ght not be abl e to teach; al though
1 6
most of those were l awful permanent resi dents that actual l y
1 7
were not affected by the order. They tal ked about the
1 8
possi bi l i ty of some students that mi ght not be abl e to
1 9
travel . Most of i t was very specul ati ve. I di dn' t see - -
20
the onl y pl ace that I saw numbers of monetary l osses was i n
21
thei r al l egati ons about l ost tax revenue. And as we
22
expl ai ned i n our bri ef, those are - - l ots of courts have
23
recogni zed that sort of general i zed gri evances l i ke that are
24
not cogni zabl e i nj uri es, anal ogi zi ng i t to the
25
taxpayer- standi ng context.
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1
THE COURT: I f I have a student who i s admi tted to
2
one of those two uni versi ti es, who i s i n a country who i s now
3
unabl e to come to the Uni ted States, enrol l and pay tui ti on,
4
i s that not a di rect fi nanci al harm?
5
MS. BENNETT: Your Honor, we don' t thi nk i t' s a
6
di rect fi nanci al harm to the state. We thi nk i t' s - - I mean,
7
perhaps gi ven the ci rcumstances, and i t woul d depends on the
8
ci rcumstances, coul d be a harm to the i ndi vi dual . But the - -
9
THE COURT: No, they' re benefi tti ng, they' re not
1 0
payi ng that outrageous tui ti on. You know, i t' s the
1 1
Uni versi ty of Washi ngton, part of the State of Washi ngton, or
1 2
Washi ngton State, part of the State of Washi ngton, who are
1 3
not recei vi ng these dol l ars from thi s student who, under the
1 4
Executi ve Order, can' t get i nto the Uni ted States.
1 5
MS. BENNETT: Wel l , Your Honor, I mean, fi rst of al l ,
1 6
I ' l l poi nt out that I ' m not sure they make those al l egati ons
1 7
of a speci fi c student. But I woul d al so say that we thi nk
1 8
that i nj ury i s too far down the chai n of causati on. That
1 9
i t' s an i nci dental i mpact. And i f Your Honor were to fi nd
20
standi ng i n that ci rcumstance, i t' s hard to i magi ne a federal
21
l aw or a federal acti on that woul dn' t i n some way down the
22
l i ne have effect on states, whi ch woul d essenti al l y al l ow
23
states to sue to chal l enge any federal l aw i f they coul d
24
poi nt to a way i n whi ch some i ndi vi dual was affected by the
25
l aw because i t appl i ed to them, and then that i ndi vi dual , the
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1
effect on that i ndi vi dual had some effect on the state. And
2
we thi nk that that' s too expansi ve of a defi ni ti on of
3
standi ng.
4
THE COURT: Wel l , the odd coupl e of the Fi fth Ci rcui t
5
i n thei r opi ni on i n United States v. Texas, that seems to me
6
to, you know, basi cal l y fol l ow the l i nes of what you j ust
7
sai d i s i mproper.
8
MS. BENNETT: Wel l , Your Honor, as I sai d, we
9
respectful l y di sagree wi th the Fi fth Ci rcui t' s deci si on and
1 0
note, of course, as Your Honor knows, that you' re not bound
1 1
by that deci si on.
1 2
Pl ai nti ffs haven' t ci ted anythi ng i n the Ni nth Ci rcui t
1 3
that rel i es on that sort of i nj ury. As we expl ai ned i n the
1 4
bri efs, some of the cases they ci ted, I bel i eve the one
1 5
school case that they ci te i nvol ved a bank that had
1 6
termi nated i ts l oan guarantee program wi th the school . So
1 7
that was a more di rect effect on the school . Whereas here
1 8
the government i s not regul ati ng i n any way the school . The
1 9
government' s i nteracti ons are wi th i ndi vi dual s. And they
20
are, perhaps, down- the- l i ne consequences on the state,
21
al though we thi nk many of those, i f not al l of them, are
22
specul ati ve.
23
THE COURT: Let me move you off of standi ng, i f you
24
woul d. Gi ven the breadth of authori ty of the Executi ve i n
25
the area of i mmi grati on, do you acknowl edge any l i mi tati on on
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1
hi s or her power?
2
MS. BENNETT: Your Honor, I don' t thi nk Your Honor
3
needs to answer that questi on to deci de on thi s case.
4
THE COURT: No, but i t seemed l i ke a good questi on.
5
MS. BENNETT: I don' t thi nk i t woul d be wi se to sort
6
of opi ne on what the extent of the Executi ve' s power i s.
7
Here we have speci fi c ci rcumstances where the Presi dent has
8
i ssued thi s Executi ve Order. I t was pursuant to authori ty
9
that Congress gave hi m i n Secti on 21 2( f) of the I NA that
1 0
speci fi cal l y al l ows hi m to suspend the entry of certai n
1 1
al i ens or cl ass of al i ens when he fi nds that i t woul d be
1 2
detri mental to the i nterests of the Uni ted States to al l ow
1 3
them i n.
1 4
So here we have the Presi dent acti ng pursuant to power
1 5
that Congress gave hi m, whi ch means, under the Youngstown
1 6
Steel sei zure cases, he' s acti ng at the apex of hi s power.
1 7
And the Executi ve Order, as Your Honor menti oned, i s
1 8
ti ed - - the countri es that i t appl i es to - - i s ti ed to
1 9
countri es that Congress previ ousl y, for two of them,
20
expl i ci tl y desi gnated as countri es of concern, and that
21
Congress desi gnated authori ty to the Presi dent to - - or,
22
sorry, to federal agenci es, to desi gnate other countri es.
23
And under the pri or admi ni strati on, the remai ni ng fi ve
24
countri es were desi gnated as areas of concern. And so we
25
thi nk i n the context of, certai nl y i n the context of thi s
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1
case, the Presi dent i s acti ng wel l wi thi n hi s - - the
2
authori ty that Congress has gi ven hi m. And Your Honor need
3
not opi ne on what he may or may not be abl e to do beyond
4
that.
5
Your Honor, wi th respect to the pl ai nti ffs' argument that
6
the Presi dent' s authori ty i s somehow l i mi ted by Secti on
7
1 1 52( a) ( 1 ) ( A) of the I NA, as we expl ai ned i n our bri efi ng, we
8
don' t read that as a l i mi tati on on the Presi dent' s expansi ve
9
power under 21 2( f) . As we noted i n our bri efs, there have
1 0
been other presi dents that have exerci sed the power i n 21 2( f)
1 1
i n ways that di sti ngui sh between nati onal i ti es, as the
1 2
Presi dent has done here.
1 3
We al so menti oned that these di sti ncti ons between
1 4
nati onal i ti es were made expl i ci tl y by Congress i n 8 U. S. C.
1 5
1 1 87. That' s what the Presi dent has ti ed the Executi ve Order
1 6
to here. And so we don' t understand 1 1 52( a) as i mposi ng a
1 7
l i mi tati on on the Presi dent' s power.
1 8
I f i t di d, as we poi nted out i n our bri ef, you can i magi ne
1 9
a si tuati on where basi cal l y that provi si on woul d prevent the
20
Presi dent from suspendi ng the entry of al i ens from countri es
21
that the Uni ted States has to be at war wi th. And we don' t
22
thi nk that' s a fai r readi ng of the statute. So we thi nk that
23
21 2( f) appl i es i n si tuati ons where the Presi dent has made the
24
determi nati on that the entry of certai n al i ens woul d be
25
detri mental to the Uni ted States, and si tuati ons where
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1
that - - when that determi nati on has not been made, then the
2
other provi si on i n 1 1 52 appl i es to prevent these
3
di scri mi nati on - - to bar certai n types of di scri mi nati on i n
4
the i ssuance of i mmi grant vi sas.
5
THE COURT: I ' d l i ke to move you al ong to equal
6
protecti on i f we can.
7
MS. BENNETT: Sure.
8
THE COURT: You strongl y urge that stri ct scruti ny
9
doesn' t appl y. Can i t ever appl y i n the i mmi grati on context,
1 0
i n the government' s vi ew?
1 1
MS. BENNETT: Your Honor, agai n, I hesi tate to opi ne
1 2
on whether i t can ever appl y as opposed to whether i t appl i es
1 3
under the ci rcumstances of thi s case. The courts have made
1 4
cl ear that di sti ncti ons based on nati onal i ty, whi ch i s what
1 5
thi s Executi ve Order does, i n the i mmi grati on context, are
1 6
compl etel y val i d and l egi ti mate and do not vi ol ate the
1 7
Consti tuti on. And so i n the context of thi s case, there' s no
1 8
equal protecti on vi ol ati on.
1 9
Wi th respect to the argument of rel i gi ous di scri mi nati on.
20
Agai n, i t' s a l i ttl e bi t confusi ng whether the - - exactl y
21
what the state' s rel i gi ous di scri mi nati on cl ai m i s. We
22
understand i t to be l i mi ted to Secti on 5 of the Executi ve
23
Order, whi ch i s about refugees. And i n that context, for
24
reasons Your Honor menti oned, we thi nk the cl ai m i s unri pe.
25
But i t al so - - that provi si on doesn' t di scri mi nate agai nst
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1
rel i gi on.
2
THE COURT: Wel l , no. I t may not di scri mi nate, but
3
i t favors one over another.
4
MS. BENNETT: I t doesn' t, Your Honor. I t sets up a
5
system - - i t doesn' t even set up a system. I t says, 1 20 days
6
from now, once the suspensi on of the refugee program i s back
7
on track, that the executi ve branch, the Secretary of
8
Homel and Securi ty and Secretary of State, are to make changes
9
to the extent permi tted by l aw to the pri ori ti zed refugee
1 0
cl ai ms based on rel i gi ous- based persecuti on where the
1 1
rel i gi on i s a mi nori ty rel i gi on i n that i ndi vi dual ' s country
1 2
of nati onal i ty.
1 3
And, Your Honor, that provi si on doesn' t j ust appl y to the
1 4
seven countri es that are desi gnated i n Secti on 3 of the
1 5
order. I t appl i es to al l countri es. So you can i magi ne
1 6
that, whi l e i t mi ght be true that the seven countri es are
1 7
maj ori ty of Musl i ms, there are other countri es where I sl am
1 8
woul d not be the maj ori ty rel i gi on. And i n those contexts
1 9
the mi nori ty rel i gi on mi ght be I sl am.
20
THE COURT: But under the establ i shment cases, I
21
thi nk you' re argui ng agai nst your own posi ti on, aren' t you?
22
What you' re sayi ng i s, i n any parti cul ar country we' re goi ng
23
to reward someone for bel ongi ng to a parti cul ar fai th or
24
practi ci ng a parti cul ar fai th.
25
MS. BENNETT: Wel l , Your Honor, I don' t thi nk we' re
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1
sayi ng that. The government has l ong pri ori ti zed or
2
permi tted asyl um cl ai ms or other types of cl ai ms i n the
3
i mmi grati on context based on rel i gi ous persecuti on. So the
4
government i s not doi ng anythi ng di fferent than what i t' s
5
al ready done. I t' s not about the parti cul ar rel i gi on, i t' s
6
essenti al l y accommodati ng rel i gi on, whi ch the government has
7
al ways done.
8
But as Your Honor - - as we sai d before, thi s i s somethi ng
9
that the Presi dent has di rected executi ve agenci es to l ook
1 0
i nto thi s matter goi ng forward. And so unti l - - certai nl y
1 1
unti l 1 20 days passes, but we thi nk even beyond that, because
1 2
unti l i t' s actual l y i mpl emented we don' t know what i t' s goi ng
1 3
to l ook l i ke, that there' s no establ i shment- cause probl em.
1 4
THE COURT: Al l ri ght. I thi nk I understand your
1 5
argument. Let' s tal k about Secti on 3. I ' m goi ng to do the
1 6
same thi ng, tryi ng to l eave you some ti me to j ust tal k as
1 7
opposed to bei ng i nterrupted.
1 8
The rati onal e for Secti on 3 i s i nvoki ng 9/ 1 1 . And my
1 9
questi on to you i s: Have there been terrori st attacks i n the
20
Uni ted States by refugees or other i mmi grants from the seven
21
countri es l i sted, si nce 9/ 1 1 ?
22
MS. BENNETT: Your Honor, I don' t know the speci fi c
23
detai l s of attacks or pl anned attacks. I thi nk - - I wi l l
24
poi nt out, fi rst of al l , that the rati onal e for the order was
25
not onl y 9/ 1 1 , i t was to protect the Uni ted States from the
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1
potenti al for terrori sm.
2
I wi l l al so note that the seven countri es that are l i sted
3
i n the Executi ve Order are the same seven countri es that were
4
al ready subj ect to other restri cti ons i n obtai ni ng vi sas that
5
Congress put i n pl ace, both by nami ng countri es, Syri a and
6
I raq, and that the pri or admi ni strati on put i n pl ace by
7
desi gnati ng them as pl aces where terrori sm i s l i kel y to
8
occur, or - - the speci fi c factors are whether the presence i n
9
a parti cul ar country i ncreases the l i kel i hood that an al i en
1 0
i s a credi bl e threat to U. S. securi ty or an area that i s a
1 1
safe haven for terrori sts.
1 2
THE COURT: Wel l , l et me wal k you back, then. You' re
1 3
from the Department of Justi ce, i f I understand correctl y?
1 4
MS. BENNETT: Yes.
1 5
THE COURT: So you' re aware of l aw enforcement. How
1 6
many arrests have there been of forei gn nati onal s for those
1 7
seven countri es si nce 9/ 1 1 ?
1 8
MS. BENNETT: Your Honor, I don' t have that
1 9
i nformati on. I ' m from the ci vi l di vi si on i f that hel ps get
20
me off the hook.
21
THE COURT: Let me tel l you. The answer to that i s
22
none, as best I can tel l . So, I mean, you' re here argui ng on
23
behal f of someone that says: We have to protect the Uni ted
24
States from these i ndi vi dual s comi ng from these countri es,
25
and there' s no support for that.
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1
MS. BENNETT: Your Honor, I thi nk the poi nt i s that
2
because thi s i s a questi on of forei gn affai rs, because thi s
3
i s an area where Congress has del egated authori ty to the
4
Presi dent to make these determi nati ons, i t' s the Presi dent
5
that gets to make the determi nati ons. And the court doesn' t
6
have authori ty to l ook behi nd those determi nati ons. They' re
7
essenti al l y l i ke determi nati ons that are commi tted to agency
8
di screti on.
9
And we do thi nk that - - despi te pl ai nti ffs' cl ai m - - that
1 0
Kl eindienst v. Mandel i s di rectl y on poi nt. And i f the four
1 1
corners of the Executi ve Order offer a faci al l y l egi ti mate
1 2
and bona fi de reason for i t, whi ch they do here, that the
1 3
court can' t l ook behi nd that.
1 4
THE COURT: Wel l , counsel , I understand that from
1 5
your papers, and you very forceful l y presented that argument.
1 6
But I ' m al so asked to l ook and determi ne i f the Executi ve
1 7
Order i s rati onal l y based. And rati onal l y based to me
1 8
i mpl i es that to some extent I have to fi nd i t grounded i n
1 9
facts as opposed to fi cti on.
20
MS. BENNETT: Wel l , Your Honor, we actual l y don' t
21
thi nk you are supposed to l ook at whether i t' s rati onal l y
22
based. We thi nk that the standard i s, agai n, faci al l y
23
l egi ti mate, and that there are some cases that say the court
24
woul d have to fi nd i t whol l y i rrati onal . And agai n, Your
25
Honor, I woul d poi nt to the fact that Congress i tsel f has
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1
speci fi cal l y desi gnated two of these countri es as areas of
2
concern wi th respect to terrori sm. And the Obama
3
Admi ni strati on, the executi ve branch, desi gnated the
4
remai ni ng fi ve. And so i t' s not that thi s Executi ve Order
5
i s, i n that regard, sayi ng anythi ng new about these bei ng
6
countri es of concern as i t regards terrori sm.
7
THE COURT: Wel l , l et' s go back to somethi ng you were
8
starti ng to get around to when I i nterrupted you. You were
9
goi ng to argue Katzenbach. I sn' t that j ust cl assi c di cta?
1 0
MS. BENNETT: Your Honor, I thi nk to the extent
1 1
you' re tal ki ng about that states - -
1 2
THE COURT: I ' m tal ki ng about the l anguage you quote
1 3
i n your bri ef.
1 4
MS. BENNETT: Wel l , I mean, we al so, I thi nk, ci ted
1 5
that case for the i dea that states don' t have parens patriae
1 6
standi ng. But for the i dea that states don' t have due
1 7
process ri ghts, we ci te other cases i n our bri ef. I thi nk
1 8
that i t' s a wel l - establ i shed - - the Fi fth Amendment appl i es
1 9
to persons, and cases establ i shed that the state i s not a
20
person i n that regard. And so the state doesn' t have due
21
process ri ghts to assert.
22
THE COURT: Wel l then how do I reconci l e that wi th
23
Massachusetts v. EPA?
24
MS. BENNETT: Your Honor, Massachusetts v. EPA, whi ch
25
was a standi ng case. Ri ght? So there the facts were very
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1
speci fi c. There you had two factors that the court found
2
rel evant. One, you had an actual i nj ury to the terri tori al
3
soverei gnty of Massachusetts. The court tal ked about how
4
gl obal warmi ng actual l y affected the terri tory of
5
Massachusetts, i ts coastl i ne, an area that was owned by the
6
state. And the second factor was that Congress had
7
expl i ci tl y gi ven states and other parti es a procedural ri ght,
8
when someone peti ti oned the EPA to l ook i nto gl obal warmi ng
9
and the EPA deni ed that peti ti on, then Congress created a
1 0
procedural mechani sm for that person to chal l enge that
1 1
deci si on.
1 2
So the court sai d, i n an area where the state has an
1 3
i nj ury- i n- fact, i t' s an i nj ury to i ts terri tori al soverei gnty
1 4
and these expl i ci t procedural ri ghts, that there' s standi ng.
1 5
And nei ther one of those ci rcumstances are present here.
1 6
Washi ngton, of course, doesn' t al l ege any i nj ury to i ts
1 7
terri tori al soverei gnty. I t doesn' t - - you know, i ts other
1 8
al l eged i nj uri es are sort of i nci dental .
1 9
THE COURT: Expl ai n to me what you mean by the term
20
" terri tori al soverei gnty. "
21
MS. BENNETT: I nj ury to i ts terri tory. So i t' s
22
pol l uti on of i ts ri vers, for exampl e, pol l uti on of i ts
23
coastl i ne, pol l uti on of i ts l and.
24
THE COURT: So the federal government can do whatever
25
i t wanted to peopl e who l i ve here, and as l ong as the l and i s
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1
not damaged, there' s no harm or there' s no cause of acti on?
2
MS. BENNETT: Wel l , Your Honor, I mean, I woul dn' t
3
make a statement that broad. I thi nk that the statement I
4
woul d make here i s that when the federal government regul ates
5
i ndi vi dual s, and there are sort of specul ati ve downstream
6
effects that mi ght affect the state i n terms of l ost revenue
7
and stuff l i ke that, cases have sai d no, that that' s not
8
suffi ci ent. That i t' s not suffi ci entl y di rect as i t was i n
9
Massachusetts.
1 0
THE COURT: Al l ri ght. Before I run out of al l your
1 1
ti me al so, what l i mi ts does 1 1 52( a) ( 1 ) ( A) pl ace on the
1 2
Executi ve?
1 3
MS. BENNETT: Your Honor, we thi nk - - so, i n terms of
1 4
when, as I was tryi ng to expl ai n before, i n terms of when the
1 5
Presi dent has made a determi nati on under Secti on 21 2( f) of
1 6
the I NA, that entry of certai n al i ens shoul d be suspended
1 7
because i t woul d be detri mental to the Uni ted States
1 8
otherwi se, we thi nk that that trumps the 1 1 52( a) .
1 9
THE COURT: Wel l , l et' s concentrate on that. You
20
argue thi s i n your bri ef that the Executi ve can cl assi fy
21
al i ens by ori gi n of bi rth or nati onal i ty. And then there i s
22
a statute that says the cl assi c anti - di scri mi nati on l anguage.
23
How do I reconci l e those two concepts?
24
MS. BENNETT: Your Honor, so we thi nk that the
25
1 1 52( a) onl y appl i es when the Presi dent has not made that
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1
desi gnati on. And I wi l l - - to sort of pl ay thi s out a l i ttl e
2
more - -
3
THE COURT: Stop there. Tel l me what the authori ty
4
i s for that argument. You make i t i n your bri efi ng and you
5
don' t gi ve me any authori ty for i t there; you j ust sort of
6
make the statement that, yes, that' s our posi ti on. Hel p me
7
understand where i t comes from.
8
MS. BENNETT: I thi nk the fi rst pri nci pl e woul d be
9
that the court i s supposed to attempt to reconci l e competi ng
1 0
provi si ons of a statute. I thi nk there' s al so, Your Honor, a
1 1
consti tuti onal avoi dance poi nt. Here the Presi dent i s acti ng
1 2
i n an area of hi s Arti cl e I I powers i n forei gn affai rs. And
1 3
i f the court were to fi nd some sort of confl i ct between the
1 4
two, the court mi ght run up agai nst the consti tuti onal
1 5
questi on of whether the Presi dent had authori ty to make
1 6
di sti ncti ons based on nati onal i ty.
1 7
THE COURT: Or that the Executi ve i s runni ng up
1 8
agai nst the l aw that Congress has passed.
1 9
MS. BENNETT: Wel l , Your Honor, to the extent that
20
you' re concerned about that, I woul d j ust note that Congress
21
i tsel f, i n the I NA, makes those very same di sti ncti ons based
22
on nati onal i ty. I n the provi si on that the Presi dent i s
23
rel yi ng on here 1 1 - - 8 U. S. C. 1 1 87, where i t says that
24
di fferent rul es i n terms of appl yi ng for vi sas appl y to, and
25
i t names two countri es, I raq and Syri a, and then al l ows the
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1
Presi dent to desi gnate others.
2
We thi nk that a readi ng that says that 1 1 52 appl i es, no
3
matter what, woul d trump that provi si on or woul d suggest that
4
that provi si on was i nval i d.
5
THE COURT: I don' t get a l ot of chance to do
6
statutory i nterpretati on. But l et' s concentrate on that for
7
a moment. As I understand i t, 1 1 52( a) was promul gated after
8
1 1 82( f) . Do you agree wi th that?
9
MS. BENNETT: Yes, Your Honor.
1 0
THE COURT: And di dn' t Congress then have to, by
1 1
statutory constructi on, Congress had to be aware of 1 1 82( f) ?
1 2
MS. BENNETT: Yes, Your Honor. That' s ri ght.
1 3
THE COURT: And i n that parti cul ar provi si on i t makes
1 4
a number of excepti ons, but i t does not except to 52.
1 5
MS. BENNETT: Because we don' t thi nk Congress thought
1 6
i t appl i ed. Agai n, thi s i s a - - the 1 1 52( a) i s i n a narrower
1 7
secti on of the statute that tal ks about creati ng a uni form
1 8
quota system for i mmi grant vi sas, for whi ch peopl e are goi ng
1 9
to be al l owed to come i nto thi s country. And we j ust thi nk
20
that that' s a narrower secti on of the statute and that the
21
Presi dent' s broader authori ty - - agai n, Your Honor, I
22
hesi tate to repeat thi s, but I thi nk i t' s a good exampl e. I
23
mean, Your Honor, i f thi s provi si on of 1 1 52 trumped 21 2( f) ,
24
then the Presi dent woul d essenti al l y be prohi bi ted from
25
restri cti ng the entry of al i ens to a country at whi ch the
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1
Uni ted States was at war. And we j ust don' t thi nk that
2
Congress coul d have meant that.
3
THE COURT: You' ve shaken those bones about as much
4
as you can get out of them.
5
Why shoul dn' t the court assume that Congress di d not want
6
to except 1 1 82( f) from the operati on of 1 1 51 ? I mean,
7
Justi ce Scal i a has not been wi th us for a year, but i t seems
8
that what you' re runni ng to now i s, oh, al l I have to do i s
9
l ook at the l egi sl ati ve hi story and that must have been what
1 0
they meant.
1 1
MS. BENNETT: Wel l , I don' t thi nk Your Honor needs to
1 2
l ook at the l egi sl ati ve hi story. I thi nk you can l ook at the
1 3
text and the structure of the statute, that thi s broader
1 4
power authori zi ng the Presi dent to suspend the entry of any
1 5
al i ens, or any cl ass of al i ens, supersedes thi s other
1 6
provi si on that otherwi se woul d appl y i n the absence of that.
1 7
I woul d al so note, Your Honor, that we al so make
1 8
addi ti onal arguments i n our bri ef about the procedural
1 9
exempti on to 1 1 52( a) and i ts narrowness as wel l . But we
20
thi nk 21 2( f) trumps that provi si on.
21
THE COURT: Al l ri ght. You' ve got about si x mi nutes
22
l eft, so I won' t i nterrupt you ei ther for a bi t here.
23
MS. BENNETT: Okay, Your Honor. Thank you.
24
I ' l l j ust make a few more poi nts. I thi nk I covered
25
l argel y what I wanted to cover. But wi th respect to the
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1
remai ni ng two prel i mi nary i nj uncti on factors, I woul d j ust
2
say that the state, we don' t thi nk they' ve establ i shed
3
standi ng and i nj ury. But certai nl y even i f Your Honor
4
di sagrees, they haven' t shown i rreparabl e harm. As thi s
5
process has sort of shown, the Executi ve Order sets up a
6
case- by- case - - or sets up a system where there can be
7
case- by- case wai vers of speci fi c exempti ons.
8
And so the i dea that a state can come i n and sort of sue
9
on behal f of al l of i ts ci ti zens wi thout real l y sort of
1 0
pl ayi ng out speci fi c ci rcumstances where i t' s been appl i ed
1 1
unl awful l y, we thi nk that' s not the proper avenue for a TRO.
1 2
Agai n, that certai nl y, perhaps, some of these i ndi vi dual s
1 3
coul d bri ng thei r own case and we' d have to l ook at the facts
1 4
of those cases. But as for thi s faci al chal l enge, for Your
1 5
Honor to enj oi n thi s restrai ni ng order, or frankl y even parts
1 6
of i t, even provi si ons of i t, we thi nk that' s a faci al
1 7
chal l enge and that Your Honor can' t do that i n l i ght of the
1 8
fact that i t i s l awful i n some of i ts appl i cati ons.
1 9
And then we woul d j ust poi nt to the bal ance of the
20
equi ti es, Your Honor, and note agai n that i n thi s regard the
21
Presi dent was acti ng pursuant to congressi onal authori ty, at
22
the hei ght of hi s power, i n the area of nati onal securi ty,
23
forei gn affai rs and i mmi grati on.
24
So we' d ask that Your Honor deny the TR0.
25
THE COURT: Thank you.
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MS. BENNETT: Thank you.
2
THE COURT: Mr. Purcel l , you have about si x mi nutes.
3
MR. PURCELL: Thank you, Your Honor.
4
Just a few poi nts. Fi rst, the federal government has
5
argued that the harms to UW and WSU and thei r students and
6
facul ty are abstract. That j ust coul dn' t be further from the
7
case. They have students and facul ty who are l i teral l y
8
stranded overseas, as they' ve stated i n the decl arati ons.
9
They have sponsored vi sas for peopl e that are wasted because
1 0
they are not goi ng to be abl e to come. They went to great
1 1
ti me and expense to do that.
1 2
Thi s harm i s much more di rect and i mmedi ate than what was
1 3
happeni ng i n ei ther Massachusetts v. EPA or Texas v. United
1 4
States. I n Texas v. United States the i mmi grati on program
1 5
that was chal l enged hadn' t even taken effect yet. No one had
1 6
even qual i fi ed for i f yet. The harm was a ways down the
1 7
road. And the court there sti l l granted a prel i mi nary
1 8
i nj uncti on. Here there' s l i teral l y peopl e stuck overseas who
1 9
can' t get back to thei r uni versi ti es.
20
THE COURT: But the causes of acti on bel ong to them.
21
The state can' t be exerci si ng them on thei r behal f.
22
MR. PURCELL: The uni versi ti es and thei r students are
23
harmed by those harms, Your Honor. I t' s the uni versi ty that
24
spent the money to bri ng the peopl e here who can no l onger
25
come. I t' s the uni versi ty that went to the ti me and troubl e
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1
of sponsori ng those schol ars to come. And they' re harmed
2
i mmedi atel y. So perhaps, yes, certai nl y, the peopl e who are
3
stranded overseas may have thei r own cl ai m, but that doesn' t
4
mean that the state has no cl ai m. Massachusetts v. EPA makes
5
that cl ear, Your Honor.
6
The federal government al so tal ked about a Ni nth Ci rcui t
7
case not sayi ng anythi ng remotel y l i ke Texas v. United
8
States. We ci ted the City of Sausal ito case on page two of
9
our standi ng bri ef, where the court found standi ng based on
1 0
aestheti c harms to a l ocal government that were not
1 1
quanti fi ed i n any sort of monetary way.
1 2
You al so asked me, Your Honor, i f the court had ever
1 3
bl ocked part of an i mmi grati on order based on the equal
1 4
protecti on cl ause and due process cl ause, and my co- counsel
1 5
very hel pful l y poi nted out that, i n fact, two courts have
1 6
bl ocked parts of thi s order based on the equal protecti on
1 7
cl ause and due process cl ause. And I can gi ve you those
1 8
orders.
1 9
I t' s the Darweesh case out of the Uni ted States Di stri ct,
20
Eastern Di stri ct of New York. That order was entered on
21
January 28th - - sorry, that order was entered on January,
22
yes, 28th. And the - - I ' m goi ng to butcher thi s name - -
23
Tootkaboni case, out of the Di stri ct of Massachusetts, i ssued
24
on January 29th.
25
And both of those cases found that the peti ti oners had a
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1
strong l i kel i hood of success i n establ i shi ng the vi ol ati ons
2
of the due process and the equal protecti on cl ause of the
3
Uni ted States Consti tuti on. I don' t have al l the orders wi th
4
me, but at l east those two have found i t on thi s order.
5
The next thi ng I ' d say, Your Honor, i s that the
6
rel i gi ous- based cl ai ms, the federal government i s tryi ng to
7
l i mi t those onl y to the refugee porti ons of the order. Our
8
posi ti on i s broader than that, Your Honor. We' re sayi ng part
9
three and part fi ve were moti vated, i n part, by desi re to
1 0
target a parti cul ar, unpopul ar rel i gi ous group, Musl i ms, and
1 1
that that undermi nes the basi s for both of those secti ons.
1 2
Your Honor hel pful l y poi nted out that the Katzenbach
1 3
l anguage i s di cta. I ' m sorry I di dn' t say that, but you' re
1 4
absol utel y ri ght. And, frankl y, the federal government' s
1 5
posi ti on about the standard of revi ew here i s fri ghteni ng. I
1 6
mean, they' re basi cal l y sayi ng that you can' t revi ew anythi ng
1 7
about what the Presi dent does or says, as l ong as he says
1 8
i t' s for nati onal securi ty reasons. And that j ust can' t be
1 9
the l aw.
20
And the l ast thi ng I ' d say, Your Honor, i s that we are
21
aski ng here for nati onwi de rel i ef. We do have now two states
22
that are part of thi s case that are obvi ousl y some di stance
23
apart. We al so have peopl e tryi ng to come to Washi ngton from
24
al l over the worl d, through vari ous pl aces, and we bel i eve
25
that nati onwi de rel i ef i s appropri ate here for the same
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1
reasons that i t was i n United States v. Texas.
2
So, Your Honor, i n sum, the state i s gri evousl y harmed
3
here, both i n i ts propri etary capaci ty and i n i ts parens
4
patriae capaci ty. The decl arati ons that are attached to our
5
bri efi ng, the descri pti ons of peopl e who have been harmed i n
6
the ami cus bri efs, are heartbreaki ng. And i t' s not j ust harm
7
to peopl e who are tryi ng to come here who have never been
8
here. Agai n, that i s not the focus of our cl ai m. The focus
9
of our cl ai m i s the harm to peopl e who have been here, i n
1 0
many cases for many years, fol l owi ng the l aw, and you know,
1 1
travel ed overseas wi thout warni ng that thi s was goi ng to
1 2
happen, or coul d no l onger travel , and have l ost fundamental
1 3
ri ghts wi thout any process at al l i n an order that was
1 4
moti vated l argel y by rel i gi ous ani mus.
1 5
So we' re aski ng you to enter the temporary restrai ni ng
1 6
order that we' re seeki ng here. Thank you, Your Honor.
1 7
THE COURT: Thank you, counsel . I thi nk argument was
1 8
hel pful .
1 9
The fol l owi ng oral opi ni on wi l l consti tute the i nformal
20
opi ni on of the court. I t i s a formal opi ni on for purposes of
21
rul i ng on thi s moti on. But as I i ndi cated to you, I i ntend
22
to do a formal wri tten order. And hopeful l y we wi l l have
23
that on fi l e over the weekend, so that by the ti me the Ni nth
24
Ci rcui t opens on Monday you' l l be i n a posi ti on to be abl e to
25
seek revi ew of i t.
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1
Before the court i s pl ai nti ffs State of Washi ngton and
2
State of Mi nnesota' s emergency moti on for a temporary
3
restrai ni ng order. For the audi ence out there, l awyers refer
4
to those as TROs. And that' s not i ni ti al s that we l i ke to
5
see.
6
The court has revi ewed the moti on, the compl ai nt, the
7
amended compl ai nt, the submi ssi ons of the parti es, the
8
submi ssi ons of the ami ci , the rel evant porti ons of the
9
record, and most i mportantl y, the appl i cabl e l aw. And I do
1 0
very much appreci ate the fact that counsel have come for oral
1 1
argument today on a very expedi ted basi s; and have done a
1 2
ni ce j ob of submi tti ng wri tten materi al s to the court, whi ch
1 3
are hel pful , and al so parti ci pati ng i n oral argument.
1 4
I ' m goi ng to di gress for a moment and remi nd peopl e who
1 5
see thi s opi ni on and wonder what' s goi ng on. Fundamental to
1 6
the work of thi s court i s a recogni ti on that i t i s onl y one
1 7
of three branches, three equal branches of our government.
1 8
The rol e assi gned to the court i s not to create pol i cy, and
1 9
i t' s not to j udge the wi sdom of any parti cul ar pol i cy
20
promoted by the other two branches. That i s the work of the
21
l egi sl ati ve and executi ve branches and the ci ti zens who
22
ul ti matel y, by exerci si ng thei r ri ghts to vote, exerci se
23
democrati c control over those branches.
24
The work of the j udi ci ary i s l i mi ted to ensuri ng that the
25
acti ons taken by those two branches comport wi th our l aws,
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1
and most i mportantl y, our consti tuti on.
2
There i s a very narrow questi on before the court today
3
that i s asked to be consi dered and that i s whether i t i s
4
appropri ate to enter a TRO agai nst certai n acti ons taken by
5
the Executi ve that are enumerated i n thi s speci fi c l awsui t.
6
Al though that questi on i s narrow, the court i s mi ndful of the
7
consi derabl e i mpact that i ts order may have on the parti es
8
before i t, the executi ve branch of our government, and the
9
country' s ci ti zens and resi dents.
1 0
I wi l l not repeat the procedural background of thi s case.
1 1
I t wi l l be i n the wri tten order. I woul d i nstead note that
1 2
the moti on was fi l ed and that the federal defendants opposed
1 3
the state' s moti on.
1 4
Any questi on regardi ng l awsui ts i n federal court starts
1 5
wi th the i ssue of: Does the court have j uri sdi cti on over the
1 6
federal defendants and the subj ect matter of the l awsui t? I n
1 7
terms of noti ce to the federal defendants, that was certai nl y
1 8
accompl i shed, and i ndeed, the federal defendants have
1 9
appeared and argued before the court and defended thei r
20
posi ti on i n thi s acti on. And si nce thi s i s an attack based
21
on the consti tuti on and federal l aw, I fi nd that I do have
22
subj ect matter j uri sdi cti on.
23
The standard for i ssui ng a restrai ni ng order i n thi s
24
ci rcui t i s the same as for i ssui ng a prel i mi nary i nj uncti on.
25
A temporary restrai ni ng order i s, as the government has
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47
1
noted, an extraordi nary remedy that may onl y be awarded upon
2
a cl ear showi ng that the pl ai nti ff i s enti tl ed to such
3
rel i ef. A ci tati on to the Wi nter case, whi ch i s wel l known
4
to the l awyers.
5
The l egal standard for prel i mi nary i nj uncti ve rel i ef, and
6
hence for a temporary restrai ni ng order, i s that the
7
pl ai nti ff must be l i kel y to succeed on the meri ts, that i t
8
wi l l suffer i rreparabl e harm i n the absence of prel i mi nary
9
rel i ef, that the bal ance of equi ti es ti ps i n thei r favor, and
1 0
fi nal l y, that the i nj uncti on i s i n the publ i c i nterest.
1 1
The Ni nth Ci rcui t has an al ternati ve test whi ch i t' s used
1 2
from ti me to ti me and i s wel l known to the parti es and wi l l
1 3
be i n the wri tten order.
1 4
I t i s an i nteresti ng questi on i n regards to the standi ng
1 5
of the states to bri ng thi s acti on. I ' m sure the one i tem
1 6
that al l counsel woul d agree on i s that the standi ng l aw i s a
1 7
l i ttl e murky. I fi nd, however, that the state does have
1 8
standi ng i n regards to thi s matter, and therefore they are
1 9
properl y here. And I probed wi th both counsel my reasons for
20
fi ndi ng that, whi ch have to do wi th di rect, i mmedi ate harm
21
goi ng to the states, as i nsti tuti ons, i n addi ti on to harm to
22
thei r ci ti zens, whi ch they are not abl e to represent as
23
di rectl y.
24
Therefore, turni ng to the meri ts. The court fi nds that
25
for purposes of the entry of the temporary restrai ni ng order,
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1
that the state has met i ts burden of demonstrati ng that i t
2
faces i mmedi ate and i rreparabl e i nj ury as a resul t of the
3
si gni ng and i mpl ementati on of the Executi ve Order.
4
I fi nd that the state has sati sfi ed the test that i t i s
5
l i kel y to succeed on the meri ts of the cl ai m, whi ch woul d
6
enti tl e them to rel i ef. I fi nd that the bal ance of equi ti es
7
favor the states. And l astl y, I fi nd that a temporary
8
restrai ni ng order i s i n the publ i c i nterest.
9
I f I were to appl y the Ni nth Ci rcui t' s al ternati ve test, I
1 0
woul d fi nd that the states have establ i shed a questi on, a
1 1
seri ous questi on goi ng to the meri ts, and the bal ance of
1 2
equi ti es ti ps sharpl y i n thei r favor. As such, I fi nd that
1 3
the court shoul d and wi l l grant the temporary restrai ni ng
1 4
order.
1 5
The scope of that order i s as fol l ows: Federal defendants
1 6
and al l thei r respecti ve offi cers, agents, servants,
1 7
empl oyees, attorneys, and persons acti ng i n concert or
1 8
parti ci pati on wi th them are hereby enj oi ned and restrai ned
1 9
from:
20
( A) Enforci ng Secti on 3( c) of the Executi ve Order;
21
( B) Enj oi ned and restrai ned from enforci ng secti on 5( a)
22
of the Executi ve Order;
23
( C) Enj oi ned and restrai ned from enforci ng Secti on 5( b)
24
of the Executi ve Order, or proceedi ng wi th any acti on that
25
pri ori ti zes the refugee cl ai ms of certai n rel i gi ous
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49
1
mi nori ti es;
2
( D) Enj oi ned and restrai ned from enforci ng Secti on 5( c)
3
of the Executi ve Order, and l astl y;
4
( E) Enj oi ned and restrai ned from enforci ng Secti on 5( e)
5
of the Executi ve Order, to the extent Secti on 5( e) purports
6
to pri ori ti ze refugee cl ai ms of certai n rel i gi ous mi nori ti es.
7
Thi s TRO i s granted on a nati onwi de basi s and prohi bi ts
8
enforcement of Secti ons 3( c) , 5( a) , 5( b) , 5( c) and 5( e) of
9
the Executi ve Order at al l Uni ted States borders and ports of
1 0
entry pendi ng further orders from thi s court.
1 1
I consi dered the questi on of the government' s request that
1 2
the order shoul d be l i mi ted to Mi nnesota and Washi ngton, but
1 3
I fi nd that such parti al i mpl ementati on of the Executi ve
1 4
Order woul d undermi ne the consti tuti onal i mperati ve of a
1 5
uni form rul e of natural i zati on and Congress' s i nstructi on
1 6
that i mmi grati on l aws of the Uni ted States shoul d be enforced
1 7
vi gorousl y and uni forml y. That' s l anguage i s from Texas v.
1 8
United States, 809 F. 3d, 1 34, 1 55, 5th Ci rcui t 201 5.
1 9
I fi nd that no securi ty bond i s requi red under the Federal
20
Rul es of Ci vi l Procedure 65( c) , and I di rect that the parti es
21
confer and get back to the court promptl y - - today woul dn' t
22
be too l ate, but by next week - - regardi ng a date for the
23
prel i mi nary i nj uncti on heari ng, the ti me for the moti on for
24
the prel i mi nary i nj uncti on, the ti me for the federal
25
defendants to fi l e thei r opposi ti on and for the states to
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1
fi l e thei r repl y.
2
Once we know that, we' l l promptl y schedul e a heari ng on
3
the moti on for prel i mi nary i nj uncti on after we are i n recei pt
4
of the parti es' bri efi ng.
5
The court concl udes that the ci rcumstances that brought i t
6
here today are such that we must i ntervene to ful fi l l the
7
j udi ci ary' s consti tuti onal rol e i n our tri - part government.
8
Therefore, the court concl udes that entry of the
9
above- descri bed TRO i s necessary and the state' s moti on i s
1 0
hereby granted.
1 1
Counsel , anythi ng further at thi s ti me? Mr. Purcel l ?
1 2
MR. PURCELL: No, Your Honor.
1 3
THE COURT: Ms. Bennett?
1 4
MS. BENNETT: One more thi ng, Your Honor, as a
1 5
procedural matter the government woul d move Your Honor to
1 6
stay the TRO, for the same purposes that we opposed the TRO,
1 7
pendi ng a deci si on of the ASG of whether to appeal , whether
1 8
to fi l e an appeal .
1 9
THE COURT: I ' m sorry, pendi ng a deci si on by the. . .
20
MS. BENNETT: I ' m sorry, the Acti ng Sol i ci tor
21
General ; I ' m sorry, Your Honor, we use l ots of acronyms. By
22
the Acti ng Sol i ci tor General .
23
THE COURT: I understand the moti on and I am goi ng to
24
deny i t.
25
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1
THE COURT: I wi l l do everythi ng I can to get you
2
prompt appel l ate revi ew, whi ch I thi nk i s the appropri ate
3
case to take.
4
5
THE COURT: We wi l l be i n recess. Thank you,
6
counsel .
7
( The proceedi ngs recessed. )
1 0
1 1
1 2
1 3
1 4
1 5
1 6
1 7
1 8
1 9
20
21
22
23
24
25
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52
C E R T I F I C A T E
I , Debbi e K. Zurn, RMR, CRR, Court Reporter for
the Uni ted States Di stri ct Court i n the Western Di stri ct of
Washi ngton at Seattl e, do hereby certi fy that I was present
i n court duri ng the foregoi ng matter and reported sai d
proceedi ngs stenographi cal l y.
I further certi fy that thereafter, I have caused
sai d stenographi c notes to be transcri bed under my di recti on
and that the foregoi ng pages are a true and accurate
transcri pti on to the best of my abi l i ty.
/ s/ Debbie Zurn
DEBBI E ZURN
OFFI CI AL COURT REPORTER
Document ID: 0.7.12561.60389

No. 17-35105
IN THE UNITED STATES COURT OF APPEALS

STATE OF WASHINGTON, et al.,

Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON
REPLY IN SUPPORT OF EMERGENCY

MOTION FOR STAY PENDING APPEAL
_____________________
EDWIN S. KNEEDLER* AUGUST E. FLENTJE

Deputy Solicitor General Special Counsel to the Assistant
Attorney General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
CATHERINE DORSEY

* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing
this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their
former law firm.
Document ID: 0.7.12561.60083

The Executive Order is a lawful exercise of the President’s authority over the
entry of aliens into the United States and the admission of refugees. Relying on his
express statutory authority to suspend entry of any class of aliens to protect the
national interest, the President has directed a temporary suspension of entries
through the refugee program and from countries that have a previously identified
link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose
of that temporary suspension is to permit an orderly review and revision of screening
procedures to ensure that adequate standards are in place to protect against terrorist
attacks. As a different district court recently concluded, that objective provides a
“facially legitimate and bona fide” justification that satisfies any constitutional
scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG,
Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.
The district court therefore erred in entering an injunction barring
enforcement of the order. But even if some relief were appropriate, the court’s
sweeping nationwide injunction is vastly overbroad, extending far beyond the
State’s legal claims to encompass numerous applications of the Order that the State
does not even attempt to argue are unlawful.
1. As an initial matter, the State cannot challenge the denial of entry or
visas to third-party aliens. It is well-settled that a State lacks authority to sue “as the
representative of its citizens” to protect them from the operation of federal law.
Document ID: 0.7.12561.60083

Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923); South Carolina v.
Katzenbach, 383 U.S. 301, 324 (1966). The State invokes the “special solicitude”
for States referred to in Massachusetts v. EPA, but there, Massachusetts sought to
enforce a congressionally created “procedural right” to protect a loss of “sovereign
territory.” 549 U.S. 497, 519-20, 522-23 (2007). Here, by contrast, the State’s
interest in protecting its own territory is not at issue. Instead, the Constitution vests
the federal government with exclusive power over immigration for the Nation as a
whole, and Congress did not create any “procedural right” for States to sue the
federal government to challenge its decisions to deny the entry of (or revoke visas
held by) third-party aliens.
To the contrary, an alien outside the United States has no substantive right or
basis for judicial review in the denial of a visa at all. See Brownell v. Tom We Shung,
352 U.S. 180, 184 n.3, 185 n.6 (1956). Moreover, Congress has been clear that the
issuance of a visa to an alien does not confer upon that alien any right of admission
into the United States, 8 U.S.C. § 1201(h), and that the Secretary of State “may, at
any time, in his discretion, revoke such visa or other documentation.” Id. § 1201(i).
If a visa is revoked, even the alien himself has no right of judicial review “except in
the context of a removal proceeding,” and only if the visa revocation “provides the
sole ground for removal.” Id. And even an alien who has been admitted to and
developed significant ties with this country, who has as a result come within the
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protection of the Fifth Amendment’s Due Process Clause, has no protected property
or liberty interest in the retention of his visa. Knoetze v. U.S. Dep’t of State, 634
F.2d 207, 212 (5th Cir. 1981). A fortiori, the State cannot challenge the revocation
of third-party aliens’ visas here. The State likewise cannot challenge the Executive’s
decision not to admit a refugee.
The Supreme Court’s decisions in Kerry v. Din, 135 S. Ct. 2128 (2015), and
Kleindienst v. Mandel, 408 U.S. 753 (1972), also do not support even limited judicial
review of the State’s claims here. In those cases, U.S. citizens sought review of the
denial of a third-party visa on the ground that the citizens had an independent
constitutionally-protected interest in the third-party’s admission to the country—
either a marital relationship or a First Amendment interest. The State, in contrast,
has no independent constitutional rights to invoke with respect to the denial of
admission of aliens affected by the Order.
2. Even if it could establish standing and a right of judicial review, the
State would be unlikely to succeed on the merits of its claims.
a. Congress has granted the President broad discretion under 8 U.S.C.
§ 1182(f) to suspend the entry of “any class of aliens” into the United States, and
independently broad discretion over the refugee program under 8 U.S.C. § 1157.
The exclusion of aliens is also “a fundamental act of sovereignty * * * inherent in
the executive power to control the foreign affairs of the nation.” United States ex
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rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). The State does not address
the text of § 1182(f), or the extensive caselaw relating to the exclusion of aliens from
the United States. And although the State suggests (Response 23) that it is somehow
impermissible for the President to rely on § 1182(f) “to impose a categorical ban on
admission,” the statute’s broad grant of authority to suspend the entry “of any class
of aliens,” “for such period as [the President] shall deem necessary,” whenever the
President finds that it would be “detrimental to the interests of the United States,”
clearly authorizes the categorical, temporary suspension the President has adopted
here.
b. The State continues to argue that Section 3(c)’s temporary suspension
of the entry of aliens from seven countries contravenes the restriction on nationality-
based distinctions in 8 U.S.C. § 1152(a)(1)(A). But that restriction applies only to
“the issuance of an immigrant visa,” Id., not to the President’s restrictions on the
right of entry. It also has no application at all to aliens who hold or seek non-
immigrant visas, such as student visas or work visas. And § 1152(a)(1)(B) permits,
as here, a temporary suspension of entry pending completion of a review and
revision of procedures for processing visa applications.
Furthermore, even if it applied, § 1152(a)(1)(A) would not restrict § 1182(f)’s
broad grant of discretionary authority. A court should, whenever possible, “interpret
two seemingly inconsistent statutes to avoid a potential conflict,” California ex rel.
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Sacramento Metro. Air Quality Mgmt. Dist. v. United States, 215 F.3d 1005, 1012
(9th Cir. 2000), and should interpret “the specific [to] govern[] the general.”
RadLAX Gateway Hotel v. Amalgamated Bank, 132 S. Ct. 2065, 2070-71 (2012).
Here, § 1152(a)(1)(A) establishes a general rule governing the issuance of immigrant
visas, whereas § 1182(f) governs the specific instance in which the President
determines that entry of a “class of aliens” would be “detrimental to the interests of
the United States.” The State’s assertion that § 1152(a)(1)(A) limits that authority
would mean that the President would be statutorily disabled from barring the entry
of nationals of a country with which the United States was at war—a result that
would raise serious constitutional questions, which is itself a sufficient reason to
reject the State’s reading. See Edward J. DeBartolo Corp. v. Florida Gulf Coast
Building & Constr. Trades Council, 485 U.S. 568, 575 (1988).
c. The State asserts that the Order violates the constitutional rights of
lawful permanent residents (LPRs). Response at 10, 15 & n.3, 16. But the Order
does not apply to LPRs. Exhibit D. It applies only to aliens who lack LPR status.
And most of those aliens are outside the United States and have never been admitted
to this country. The Supreme Court “has long held that an alien seeking initial
admission to the United States requests a privilege and has no constitutional rights
regarding his application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982).
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The State argues (Response 9) that “courts routinely review executive
decisions with far greater security implications than this Order.” In those cases,
however, the courts were reviewing government actions taken against individuals
who had rights under the U.S. Constitution or federal statutes with respect to the
adverse actions they faced. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 535 (2004)
(plurality op.) (reviewing indefinite detention of U.S. citizen); Boumediene v. Bush,
553 U.S. 723 (2008) (reviewing detention of aliens held to have constitutionally
protected interest in habeas corpus review). Those cases do not override the
longstanding rule that aliens outside the United States have no right or interest in
their admission to the United States protected by the Due Process Clause, Knauff,
338 U.S. at 543, or the rule that non-immigrants do not have a liberty or property
interest in the retention of a visa.
d. The State’s constitutional challenges lack merit.
i. The State first asserts that the Order violates the Establishment
Clause and equal protection principles because it was assertedly based on animus
against Muslims. That is incorrect. There are two separate aspects of the Order
challenged here, and both are neutral with respect to religion.
First, Section 3(c) temporarily suspends entry of aliens from seven countries
previously identified under 8 U.S.C. § 1187(a)(12). Those countries were identified
by Congress and the Executive Branch as being associated with a heightened risk of
Document ID: 0.7.12561.60083

terrorism. Congress itself identified Iraq and Syria, where “the Islamic State of Iraq
and the Levant (ISIL) * * * maintain[s] a formidable force.” U.S. Department of
State, Country Reports on Terrorism 2015 6 (June 2016). See 8 U.S.C.
§ 1187(a)(12)(A)(i)(I), (ii)(I). Congress also incorporated countries designated as
state sponsors of terrorism: Iran, Sudan, and Syria. Id. § 1187(a)(12)(A)(i)(II) and
(ii)(II). And in 2016, the Executive Branch added Libya, Somalia, and Yemen after
a review that considered “whether the country or area is a safe haven for terrorists”
and “whether the presence of an alien in the country or area increases the likelihood
that the alien is a credible threat to the national security of the United States.” 8
U.S.C. § 1187(a)(12)(D)(iii); https://www.dhs.gov/news/20016/02/18/dhs-
announces-further-travel-restrictions-visa-waiver-program.
Second, Section 5(a) temporarily suspends the refugee program as to refugees
from all countries, not just the seven countries identified in Section 3(c). Section
5(b) further provides that, when the refugee program resumes, the Secretary of State
shall “make changes, to the extent permitted by law, to prioritize refugee claims” by
members of persecuted minority religions. Laws that “give relief to a religious
minority” “are in tune with the Bill of Rights,” Kong v. Scully, 341 F.3d 1132, 1141
(9th Cir. 2003), and Section 5(b) of the Order applies equally to all religious
minorities seeking refugee status “on the basis of religious-based persecution.” As
the district court recognized in Louhghalam, Section 5(b) “could be invoked to give
Document ID: 0.7.12561.60083

preferred refugee status to a Muslim individual in a country that is predominantly
Christian.” Order 13.2
Accordingly, as the district court held in Louhghalam, Order 13, the Executive
Order is “neutral with respect to religion.” And under Mandel, the Order’s national-
security basis for the temporary suspension amply establishes its constitutionality.
See also Louhghalam, Order 18-19. The State asserts (Response 10) that the Court
should “look behind” the stated basis for the Order to probe its subjective
motivations because the State claims to have made “an affirmative showing of bad
faith.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring). But the State’s allegations
of bad faith are not meaningfully different from the allegations deemed insufficient
in Mandel, where the plaintiff asserted that the visa was denied because of the alien’s
advocacy of revolutionary Marxism and world communism, rather than his failure
to comply with the terms of prior visas. 408 U.S. at 756; see Din, 135 S. Ct. at 2141-
2142 (Kennedy, J., concurring) (endorsing Mandel). And here, the State asks the
courts to take the extraordinary step of second-guessing a formal national-security
judgment made by the President himself pursuant to broad grants of statutory
authority.
2
Washington relies on Larson v. Valente, 456 U.S. 228 (1982), but that holding
is limited to cases where a government statute or practice “explicitly discriminates
against a certain religious group.” Sep. of Church & State Comm. v. City of Eugene,
93 F.3d 617, 623 (9th Cir. 1996) (O’Scannlain, J., concurring).

8
Document ID: 0.7.12561.60083

ii. The State also argues (Response 14-18) that the order violates
aliens’ procedural due process rights. But as explained above, aliens outside the
United States have no due process rights with respect to their attempt to gain entry
into this country. And regardless, “notice and an opportunity to respond” is not
required where, as here, the challenged rule reflects a categorical judgment. Cf. Bi-
Metallic Inv. Co. v. State Bd. Of Equalization, 239 U.S. 441, 445 (1915) (“[w]here
a rule of conduct applies to more than a few people,” individuals affected do not
“have a constitutional right to be heard before a matter can be decided”); see also
Din, 135 S. Ct. at 2144 (Breyer, J., dissenting) (citing Bi-Metallic).
3. The State argues (Response 7-8) that the injunction does not impose
any irreparable harm. But the injunction reinstates procedures that the President
determined should be temporarily suspended in the interest of national security.
Order § 1; see also id. § 2. The Order temporarily suspends entry of aliens from
seven countries previously identified by Congress and the Executive Branch as
raising heightened terrorism-related concerns. The suspension terminates in 90
days, once concerns relating to screening practices can be addressed, as necessary
“to prevent infiltration [into this Nation] by foreign terrorists or criminals,” Order
§ 3(c). Similarly, the temporary suspension of the U.S. refugee program will be
lifted after 120 days, once the Secretaries of State and Homeland Security, in
consultation with the Director of National Intelligence, determine “what additional
Document ID: 0.7.12561.60083

procedures should be taken to ensure that those approved for refugee admission do
not pose a threat to the security and welfare of the United States.” Order § 5(a). The
potential national-security risks and harms resulting from the compelled application
of procedures that the President has determined must be reexamined, for the purpose
of ensuring an adequate measure of protection for the Nation, cannot be undone.
Nor can the effect on our constitutional separation of powers.
4. Regardless of the plaintiff’s likelihood of success, the injunction court
is, at a minimum, vastly overbroad. The State has made clear that it is seeking to
protect LPRs and other nationals from the seven identified countries who were
previously admitted to the United States and are either temporarily abroad or are
here now and wish to travel outside this country—not aliens who are attempting to
enter the country for the first time. See Response 11-12, 15-16; Transcript 7-8, 15-
16. That makes sense because the latter class of aliens have no constitutional rights
with respect to entry into the country—a point the State largely conceded below.
See Transcript 7, 15. The injunction, however, bars all applications of Section
3(c)—even as to aliens who have never previously visited this country, and have not
yet begun the process of obtaining a visa. It also bars all applications of Section 5,
even though there is no indication that any of the aliens affected by the temporary
10
Document ID: 0.7.12561.60083

suspension of the refugee program have been previously admitted to this country.3
That is plainly impermissible. At most, the injunction should be limited to the class
of individuals on whom the State’s claims rest—previously admitted aliens who are
temporarily abroad now or who wish to travel and return to the United States in the
future.
3
Indeed, the district court even enjoined a provision that will not go into effect
for 120 days, a provision as to which even plaintiffs conceded that their challenge is
not ripe for review. Transcript 15 (Section 5(b) claim “does not necessarily require
immediate injunction”).
11
Document ID: 0.7.12561.60083

CONCLUSION
For the foregoing reasons, defendants respectfully request a stay pending
appeal of the district court’s February 3, 2017 injunctive order.
Respectfully submitted,
/s/ Edwin S. Kneedler

EDWIN S. KNEEDLER* AUGUST E. FLENTJE
Deputy Solicitor General Special Counsel to the Assistant
Attorney General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
CATHERINE DORSEY

12
* The Acting Solicitor General and Acting Assistant Attorney General have refrained from signing
this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their
former law firm.
Document ID: 0.7.12561.60083

CERTIFICATE OF SERVICE
I hereby certify that on February 6, 2017, I filed the foregoing motion
with the Clerk of the Court for the United States Court of Appeals for the
Ninth Circuit by using the appellate CM/ECF system. All participants in the
case are registered CM/ECF users and will be served by the appellate
CM/ECF system.

Document ID: 0.7.12561.60083

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Reply in Support of Emergency
Motion for Stay Pending Appeal complies with the type-volume limitation of
Fed. R. App. P. 27 because it contains 2,599 words. This Motion complies
with the typeface and the type style requirements of Fed. R. App. P. 27
because this brief has been prepared in a proportionally spaced typeface using
Word 14-point Times New Roman typeface.

Document ID: 0.7.12561.60083

Hart, Rosemary {OLC)
From: Hart, Rosemary {OLC)

Sent: Friday, February 10, 2017 12:02 PM
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Sent: Friday, February 10, 2017 11:54 AM
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"N othing' s off the table," the official said.
In a stinging rebuke on Thursday, the 9th Circuit Court of Appeals rejected the administration's argument that
the judiciary lacked the authority to block the travel ban as "contrary to the fundamental structure of our
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Document ID: 0.7.12561.5803

8977
Federal Register
Presidential Documents
Vol. 82, No. 20
Wednesday, February 1, 2017
Title 3—
Executive Order 13769 of January 27, 2017
The President
Protecting the Nation From Foreign Terrorist Entry Into the
United States
By the authority vested in me as President by the Constitution and laws
of the United States of America, including the Immigration and Nationality
Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States
Code, and to protect the American people from terrorist attacks by foreign
nationals admitted to the United States, it is hereby ordered as follows:
Section 1. Purpose. The visa-issuance process plays a crucial role in detecting
individuals with terrorist ties and stopping them from entering the United
States. Perhaps in no instance was that more apparent than the terrorist
attacks of September 11, 2001, when State Department policy prevented
consular officers from properly scrutinizing the visa applications of several
of the 19 foreign nationals who went on to murder nearly 3,000 Americans.
And while the visa-issuance process was reviewed and amended after the
September 11 attacks to better detect would-be terrorists from receiving
visas, these measures did not stop attacks by foreign nationals who were
admitted to the United States.
Numerous foreign-born individuals have been convicted or implicated in
terrorism-related crimes since September 11, 2001, including foreign nation-

als who entered the United States after receiving visitor, student, or employ-
ment visas, or who entered through the United States refugee resettlement
program. Deteriorating conditions in certain countries due to war, strife,
disaster, and civil unrest increase the likelihood that terrorists will use
any means possible to enter the United States. The United States must
be vigilant during the visa-issuance process to ensure that those approved
for admission do not intend to harm Americans and that they have no
ties to terrorism.
In order to protect Americans, the United States must ensure that those
admitted to this country do not bear hostile attitudes toward it and its
founding principles. The United States cannot, and should not, admit those
who do not support the Constitution, or those who would place violent
ideologies over American law. In addition, the United States should not
admit those who engage in acts of bigotry or hatred (including ‘‘honor’’
killings, other forms of violence against women, or the persecution of those
who practice religions different from their own) or those who would oppress
Americans of any race, gender, or sexual orientation.
Sec. 2. Policy. It is the policy of the United States to protect its citizens
from foreign nationals who intend to commit terrorist attacks in the United
States; and to prevent the admission of foreign nationals who intend to
exploit United States immigration laws for malevolent purposes.
Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits
to Nationals of Countries of Particular Concern. (a) The Secretary of Home-

land Security, in consultation with the Secretary of State and the Director
sradovich on DSK3GMQ082PROD with PRES DOCS
of National Intelligence, shall immediately conduct a review to determine
the information needed from any country to adjudicate any visa, admission,
or other benefit under the INA (adjudications) in order to determine that
the individual seeking the benefit is who the individual claims to be and
is not a security or public-safety threat.
(b) The Secretary of Homeland Security, in consultation with the Secretary
of State and the Director of National Intelligence, shall submit to the President
VerDate Sep<1 1 >201 4 1 6:43 Jan 31 , 201 7 Jkt 241 001 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790 E:\FR\FM\01 FEE0.SGM 01 FEE0
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8978 Federal Register/ Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents
a report on the results of the review described in subsection (a) of this
section, including the Secretary of Homeland Security’s determination of
the information needed for adjudications and a list of countries that do
not provide adequate information, within 30 days of the date of this order.
The Secretary of Homeland Security shall provide a copy of the report
to the Secretary of State and the Director of National Intelligence.
(c) 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 of foreign nationals, and to ensure that adequate standards are
established to prevent infiltration by foreign terrorists or criminals, pursuant
to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the
immigrant and nonimmigrant entry into the United States of aliens from
countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12),
would be detrimental to the interests of the United States, and I hereby
suspend entry into the United States, as immigrants and nonimmigrants,
of such persons for 90 days from the date of this order (excluding those
foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organi-

zation visas, C–2 visas for travel to the United Nations, and G–1, G–2,
G–3, and G–4 visas).
(d) Immediately upon receipt of the report described in subsection (b)
of this section regarding the information needed for adjudications, the Sec-
retary of State shall request all foreign governments that do not supply
such information to start providing such information regarding their nationals
within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section
expires, the Secretary of Homeland Security, in consultation with the Sec-

retary of State, shall submit to the President a list of countries recommended
for inclusion on a Presidential proclamation that would prohibit the entry
of foreign nationals (excluding those foreign nationals traveling on diplomatic
visas, North Atlantic Treaty Organization visas, C–2 visas for travel to the
United Nations, and G–1, G–2, G–3, and G–4 visas) from countries that
do not provide the information requested pursuant to subsection (d) of
this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of
this section, the Secretary of State or the Secretary of Homeland Security
may submit to the President the names of any additional countries rec-
ommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section
or pursuant to a Presidential proclamation described in subsection (e) of
this section, the Secretaries of State and Homeland Security may, on a
case-by-case basis, and when in the national interest, issue visas or other
immigration benefits to nationals of countries for which visas and benefits
are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the
President a joint report on the progress in implementing this order within
30 days of the date of this order, a second report within 60 days of the
date of this order, a third report within 90 days of the date of this order,
and a fourth report within 120 days of the date of this order.
Sec. 4. Implementing Uniform Screening Standards for All Immigration Pro-

grams. (a) The Secretary of State, the Secretary of Homeland Security, the
Director of National Intelligence, and the Director of the Federal Bureau
of Investigation shall implement a program, as part of the adjudication
process for immigration benefits, to identify individuals seeking to enter
the United States on a fraudulent basis with the intent to cause harm,
or who are at risk of causing harm subsequent to their admission. This
program will include the development of a uniform screening standard
and procedure, such as in-person interviews; a database of identity docu-

ments proffered by applicants to ensure that duplicate documents are not
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Federal Register/ Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents 8979
used by multiple applicants; amended application forms that include ques-

tions aimed at identifying fraudulent answers and malicious intent; a mecha-
nism to ensure that the applicant is who the applicant claims to be; a
process to evaluate the applicant’s likelihood of becoming a positively con-

tributing member of society and the applicant’s ability to make contributions
to the national interest; and a mechanism to assess whether or not the
applicant has the intent to commit criminal or terrorist acts after entering
the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary
of State, the Director of National Intelligence, and the Director of the Federal
Bureau of Investigation, shall submit to the President an initial report on
the progress of this directive within 60 days of the date of this order,
a second report within 100 days of the date of this order, and a third
report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal
Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admis-
sions Program (USRAP) for 120 days. During the 120-day period, the Secretary
of State, in conjunction with the Secretary of Homeland Security and in
consultation with the Director of National Intelligence, shall review the
USRAP application and adjudication process to determine what additional
procedures should be taken to ensure that those approved for refugee admis-
sion do not pose a threat to the security and welfare of the United States,
and shall implement such additional procedures. Refugee applicants who
are already in the USRAP process may be admitted upon the initiation
and completion of these revised procedures. Upon the date that is 120
days after the date of this order, the Secretary of State shall resume USRAP
admissions only for nationals of countries for which the Secretary of State,
the Secretary of Homeland Security, and the Director of National Intelligence
have jointly determined that such additional procedures are adequate to
ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State,
in consultation with the Secretary of Homeland Security, is further directed
to make changes, to the extent permitted by law, 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. Where necessary and appropriate, the Secretaries
of State and Homeland Security shall recommend legislation to the President
that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim
that the entry of nationals of Syria as refugees is detrimental to the interests
of the United States and thus suspend any such entry until such time
as I have determined that sufficient changes have been made to the USRAP
to ensure that admission of Syrian refugees is consistent with the national
interest.
(d) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby
proclaim that the entry of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United States, and thus suspend
any such entry until such time as I determine that additional admissions
would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to sub-

section (a) of this section, the Secretaries of State and Homeland Security
may jointly determine to admit individuals to the United States as refugees
on a case-by-case basis, in their discretion, but only so long as they determine
that the admission of such individuals as refugees is in the national interest—
including when the person is a religious minority in his country of nationality
facing religious persecution, when admitting the person would enable the
United States to conform its conduct to a preexisting international agreement,
or when the person is already in transit and denying admission would
cause undue hardship—and it would not pose a risk to the security or
welfare of the United States.
Document ID: 0.7.12561.53451

(f) The Secretary of State shall submit to the President an initial report
on the progress of the directive in subsection (b) of this section regarding
prioritization of claims made by individuals on the basis of religious-based
persecution within 100 days of the date of this order and shall submit
a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted
by law and as practicable, State and local jurisdictions be granted a role
in the process of determining the placement or settlement in their jurisdic-

tions of aliens eligible to be admitted to the United States as refugees.
To that end, the Secretary of Homeland Security shall examine existing
law to determine the extent to which, consistent with applicable law, State
and local jurisdictions may have greater involvement in the process of
determining the placement or resettlement of refugees in their jurisdictions,
and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds
of Inadmissibility. The Secretaries of State and Homeland Security shall,
in consultation with the Attorney General, consider rescinding the exercises
of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism
grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System.
(a) The Secretary of Homeland Security shall expedite the completion and
implementation of a biometric entry-exit tracking system for all travelers
to the United States, as recommended by the National Commission on Ter-

rorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President
periodic reports on the progress of the directive contained in subsection
(a) of this section. The initial report shall be submitted within 100 days
of the date of this order, a second report shall be submitted within 200
days of the date of this order, and a third report shall be submitted within
365 days of the date of this order. Further, the Secretary shall submit
a report every 180 days thereafter until the system is fully deployed and
operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately
suspend the Visa Interview Waiver Program and ensure compliance with
section 222 of the INA, 8 U.S.C. 1202, which requires that all individuals
seeking a nonimmigrant visa undergo an in-person interview, subject to
specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of
appropriations, the Secretary of State shall immediately expand the Consular
Fellows Program, including by substantially increasing the number of Fel-

lows, lengthening or making permanent the period of service, and making
language training at the Foreign Service Institute available to Fellows for
assignment to posts outside of their area of core linguistic ability, to ensure
that non-immigrant visa-interview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all
nonimmigrant visa reciprocity agreements to ensure that they are, with re-
spect to each visa classification, truly reciprocal insofar as practicable with
respect to validity period and fees, as required by sections 221(c) and 281
of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country
does not treat United States nationals seeking nonimmigrant visas in a
reciprocal manner, the Secretary of State shall adjust the visa validity period,
fee schedule, or other treatment to match the treatment of United States
nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent
with the American people, and to more effectively implement policies and
practices that serve the national interest, the Secretary of Homeland Security,
in consultation with the Attorney General, shall, consistent with applicable
law and national security, collect and make publicly available within 180
days, and every 180 days thereafter:
Document ID: 0.7.12561.53451

Federal Register/ Vol. 82, No. 20 / Wednesday, February 1, 2017 / Presidential Documents 8981
(i) information regarding the number of foreign nationals in the United
States who have been charged with terrorism-related offenses while in
the United States; convicted of terrorism-related offenses while in the
United States; or removed from the United States based on terrorism-

related activity, affiliation, or material support to a terrorism-related organi-
zation, or any other national security reasons since the date of this order
or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United
States who have been radicalized after entry into the United States and
engaged in terrorism-related acts, or who have provided material support
to terrorism-related organizations in countries that pose a threat to the
United States, since the date of this order or the last reporting period,
whichever is later; and
(iii) information regarding the number and types of acts of gender-based
violence against women, including honor killings, in the United States
by foreign nationals, since the date of this order or the last reporting
period, whichever is later; and
(iv) any other information relevant to public safety and security as deter-
mined by the Secretary of Homeland Security and the Attorney General,
including information on the immigration status of foreign nationals
charged with major offenses.
(b) The Secretary of State shall, within one year of the date of this
order, provide a report on the estimated long-term costs of the USRAP
at the Federal, State, and local levels.
Sec. 11. General Provisions. (a) Nothing in this order shall be construed
to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency,
or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and
subject to the availability of appropriations.
Document ID: 0.7.12561.53451

(c) This order is not intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity by any party
against the United States, its departments, agencies, or entities, its officers,
employees, or agents, or any other person.
THE WHITE HOUSE,
January 27, 2017.
[FR Doc. 2017–02281
Filed 1–31–17; 11:15 am]
Billing code 3295–F7–P
Trump.EPS</GPH>
Document ID: 0.7.12561.53451

Response From DOJ's Office of Legal Counsel

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Response From DOJ's Office of Legal Counsel

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1:lnitrd ~tatrs ~rnatr

January 30, 2017

The Honorable Sally Yates

Dear Acting Attorney General Yates,

"All executive orders and proclamations proposed to be issued by the President

Document ID: 0.7.12561.6111-000001

We need an independent Department of Justice to serve as a bulwark against rash and

1. Executive Order: Reducing Regulation and Controlling Regulatory Costs (January

1. Presidential Memorandum Organization of the National Security Council and the

Document ID: 0.7.12561.6111-000001

Document ID: 0.7.12561.6111-000001

UNITED STATES COURT OF APPEALS

STATE OF WASHINGTON; STATE OF No. 17-35105

Plaintiffs-Appellees, D.C. No.

DONALD J. TRUMP, President of the ORDER

F. KELLY, Secretary of the

Motion for Stay of an Order of the

United States District Court for the

Western District of Washington

James L. Robart, District Judge, Presiding

Argued and Submitted February 7, 2017

Filed February 9, 2017

Before: William C. Canby, Richard R. Clifton, and

Michelle T. Friedland, Circuit Judges

Per Curiam Order

Document ID: 0.7.12561.58039

August E. Flentje (argued), Special Counsel to the Assistant

Attorney General; Douglas N. Letter, Sharon Swingle, H.

Thomas Byron, Lowell V. Sturgill Jr., and Catherine Dorsey,

Attorneys, Appellate Staff; Chad A. Readler, Acting

Assistant Attorney General; Noel J. Francisco, Acting

Solicitor General; Civil Division, United States Department

Noah G. Purcell (argued), Solicitor General; Marsha Chien

and Patricio A. Marquez, Assistant Attorneys General;

Colleen M. Melody, Civil Rights Unit Chief; Anne E.

Egeler, Deputy Solicitor General; Robert W. Ferguson,

Attorney General; Attorney General’s Office, Seattle,

Washington; for Plaintiff-Appellee State of Washington.

Jacob Campion, Assistant Attorney General; Alan I. Gilbert,

Solicitor General; Lori Swanson, Attorney General; Office

of the Attorney General, St. Paul, Minnesota; for Plaintiff-

At issue in this emergency proceeding is Executive

Order 13769, “Protecting the Nation From Foreign Terrorist

Entry Into the United States,” which, among other changes

to immigration policies and procedures, bans for 90 days the

countries. Two States challenged the Executive Order as

district court preliminarily ruled in their favor and

Document ID: 0.7.12561.58039

temporarily enjoined enforcement of the Executive Order.

of that order proceeds.

To rule on the Government’s motion, we must consider

several factors, including whether the Government has

shown that it is likely to succeed on the merits of its appeal,

the degree of hardship caused by a stay or its denial, and the

public interest in granting or denying a stay. We assess those

analysis of the hardships and public interest in this case

sides. Nevertheless, we hold that the Government has not

shown a likelihood of success on the merits of its appeal, nor

motion for a stay.

On January 27, 2017, the President issued Executive

Order 13769, “Protecting the Nation From Foreign Terrorist

Entry Into the United States” (the “Executive Order”).

individuals have been convicted or implicated in terrorism-