State of Washington, et al v. Donald J. Trump, et al

Filing 153

Submitted (ECF) Supplemental Brief for review. Submitted by Appellees State of Washington and State of Minnesota. Date of service: 02/16/2017. [10322280] [17-35105] (Purcell, Noah) [Entered: 02/16/2017 10:47 AM]

NO. 17-35105
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATES OF WASHINGTON AND MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD TRUMP, President of the United States, et al.,
Defendants-Appellants.
ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
No. 2:17-cv-00141
The Honorable James L. Robart
United States District Court Judge
STATES’ BRIEF REGARDING REHEARING EN BANC
ROBERT W. FERGUSON, WSBA 26004
Attorney General of Washington
NOAH G. PURCELL, WSBA 43492
Solicitor General
ANNE E. EGELER, WSBA 20258
Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275
Civil Rights Unit Chief
MARSHA CHIEN, WSBA 47020
PATRICIO A. MARQUEZ, WSBA 47693
Assistant Attorneys General
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
[phone]

LORI SWANSON
Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678
Solicitor General
JACOB CAMPION, MN #0391274
Assistant Attorney General
Office of the Attorney General
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
[phone]

TABLE OF CONTENTS
I.

INTRODUCTION ..................................................................................... 1

II.

FACTS ....................................................................................................... 1

III.

ARGUMENT ........................................................................................... 10
A. The Criteria Justifying En Banc Review Are Missing Here ............. 10
B. The Panel Correctly Described the Standard for Obtaining a
Stay .................................................................................................... 13
C. The Panel Correctly Concluded That the States Have
Standing ............................................................................................. 14
1. The States have proprietary standing .......................................... 15
2. The States have standing as parens patriae ................................ 18
D. The Panel Correctly Concluded That Courts Have Power to
Review Executive Action, Even When It Relates to National
Security or Immigration .................................................................... 21
E. The Panel Correctly Concluded That Defendants Failed To
Show a Likelihood of Success on Appeal ......................................... 25
1. Defendants failed to show a likelihood of success on the
Due Process claim ....................................................................... 25
2. Defendants failed to show a likelihood of success on the
States’ religious discrimination claims ....................................... 33
a. The States are likely to prevail on the Establishment
Clause claim ......................................................................... 34
b. The States are likely to prevail on the Equal
Protection claim .................................................................... 39

i

3. Defendants failed to show a likelihood of success on the
States’ statutory claim ................................................................. 43
F. The Panel Correctly Concluded that Defendants Failed to
Show That They Would Suffer Irreparable Injury Absent a
Stay .................................................................................................... 47
G. The Panel Correctly Concluded that the Balance of
Hardships and Public Interest Tip in the States’ Favor ..................... 49
H. The Panel Properly Declined to Narrow the Injunction .................... 51
IV. CONCLUSION ........................................................................................ 53

ii

TABLE OF AUTHORITIES
Cases
Acre v. Douglas,
793 F.3d 968 (9th Cir. 2015) ......................................................................... 39
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
458 U.S. 592 (1982) ................................................................................ 19, 21
Am. Fed’n of Gov’t Emps. Local 1 v. Stone,
502 F.3d 1027 (9th Cir. 2007) ........................................................................ 15
Andriasian v. INS,
180 F.3d 1033 (9th Cir. 1999) ....................................................................... 29
Aziz v. Trump,
2017 WL 580855 (E.D. Va. Feb. 13, 2017) .................................................. 12
Ball v. Massanari,
254 F.3d 817 (9th Cir. 2001) ......................................................................... 39
Bd. of Nat. Res. of State of Wash. v. Brown,
992 F.2d 937 (9th Cir. 1993) ......................................................................... 31
Bi-Metallic Inv. Co. v. State Bd. Of Equalization,
239 U.S. 441 (1915) ................................................................................ 32, 33
Boumediene v. Bush,
553 U.S. 723 (2008) ...................................................................................... 22
Chae Chan Ping v. U.S.,
130 U.S. 581 (1889) ...................................................................................... 46
Chae Chan Ping v. United States,
130 U.S. 581 (1889) ...................................................................................... 24

iii

Chaplaincy of Full Gospel Churches v. England,
454 F.3d 290 (D.C. Cir. 2006) ...................................................................... 53
City of New Orleans v. Dukes,
427 U.S. 297 (1976) ...................................................................................... 39
Colmenar v. INS,
210 F.3d 967 (9th Cir. 2000) ......................................................................... 27
Council of Ins. Agents & Brokers v. Molasky-Arman,
522 F.3d 925 (9th Cir. 2008) ......................................................................... 15
De La Cruz v. Tormey,
582 F.2d 45 (9th Cir. 1978) ........................................................................... 39
Diouf v. Napolitano,
634 F.3d 1081 (9th Cir. 2011) ....................................................................... 23
Gallo v. U.S. Dist. Court For Dist. of Arizona,
349 F.3d 1169 (9th Cir. 2003) ....................................................................... 32
Georgia v. Tennessee Copper Co.,
206 U.S. 230 (1907) ...................................................................................... 19
Gila River Indian Cmty. v. United States,
729 F.3d 1139 (9th Cir. 2013) ....................................................................... 46
Graham v. Richardson,
403 U.S. 365 (1971) ...................................................................................... 39
Griswold v. Connecticut,
381 U.S. 479 (1965) ....................................................................................... 17
Gutierrez v. Holder,
662 F.3d 1083 (9th Cir. 2011) ....................................................................... 27

iv

Haitian Refugee Ctr. v. Smith,
676 F.2d 1023 (5th Cir. 1982) ....................................................................... 29
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ...................................................................................... 22
Harris v. Cty. of Riverside,
904 F.2d 497 (9th Cir. 1990) ......................................................................... 33
Hassan v. City of New York,
804 F.3d 277 (3d Cir. 2015) .......................................................................... 50
Hilton v. Braunskill,
481 U.S. 770 (1987) ...................................................................................... 14
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .................................................................................... 22, 48
INS v. Chadha,
462 U.S. 919 (1983) ...................................................................................... 23
INS v. Pangilinan,
486 U.S. 875 (1988) ...................................................................................... 36
Kent v. Dulles,
357 U.S. 116 (1958) ................................................................................ 28, 32
Kerry v. Din,
135 S. Ct. 2128 (2015) .................................................................................. 36
Kleindienst v. Mandel,
408 U.S. 753 (1972) ................................................................................ 23, 24
Korematsu v. United States,
323 U.S. 214 (1944) ...................................................................................... 25
Kwong Hai Chew v. Colding,
344 U.S. 590 (1953) ...................................................................................... 27

v

Kyocera Corp. v. Prudential-Bache Trade Servs., Inc.,
341 F.3d 987 (9th Cir. 2003) ......................................................................... 13
Landon v. Plasencia,
459 U.S. 21 (1982) .................................................................................. 27, 32
Lanza v. Ashcroft,
389 F.3d 917 (9th Cir. 2004) ................................................................... 28, 29
Larson v. Valente,
456 U.S. 228 (1982) .......................................................................... 34, 36, 39
Legal Assistance for Vietnamese Asylum Seekers v.
Dep’t of State, Bureau of Consular Affairs,
45 F.3d 469 (D.C. Cir. 1995), vacated on other grounds,
519 U.S. 1 (1996) .......................................................................................... 44
Lemon v. Kurtzman,
403 U.S. 602 (1971) ................................................................................ 36, 38
Lopez v. Hecker,
713 F.2d 1432 (9th Cir. 1983) ....................................................................... 48
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) ....................................................................................... 14
Makaeff v. Trump Univ., LLC,
736 F.3d 1180 (9th Cir. 2013) ....................................................................... 12
Massachusetts v. EPA,
549 U.S. 497 (2007) ................................................................................ 20, 31
Massachusetts v. Mellon,
262 U.S. 447 (1923) ...................................................................................... 20
Mathews v. Diaz,
426 U.S. 67 (1976) ........................................................................................ 27

vi

McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky.,
545 U.S. 844 (2005) ................................................................................ 37, 43
Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) ......................................................................... 51
Miller v. Gammie,
335 F.3d 889 (9th Cir. 2003) ......................................................................... 12
Missouri v. Jenkins,
495 U.S. 33 (1990) ........................................................................................ 12
NAACP v. Alabama,
357 U.S. 449 (1958) ....................................................................................... 17
Nken v. Holder, 556 U.S. 418 (2009) ............................................................... 14
Olsen v. Albright,
990 F. Supp. 31 (D.D.C. 1997) ..................................................................... 44
Parents’ Ass’n of P.S. 16 v. Quinones,
803 F.2d 1235 (2d Cir. 1986) ........................................................................ 53
Parks Sch. of Bus., Inc. v. Symington,
51 F.3d 1480 (9th Cir. 1995) .......................................................................... 17
Romer v. Evans,
517 U.S. 620 (1996) ...................................................................................... 42
Sausalito v. Oneill,
386 F.3d 1186 (9th Cir. 2004) ....................................................................... 18
Separation of Church & State Comm. v. City of Eugene,
93 F.3d 617 (9th Cir. 1996) ........................................................................... 53
Setser v. United States,
556 U.S. 231 (2012) ...................................................................................... 44

vii

Singleton v. Wulff,
428 U.S. 106, 114-16 (1976) .......................................................................... 17
South Carolina v. Katzenbach,
383 U.S. 301 (1966) ...................................................................................... 31
Susan B. Anthony List v. Driehaus,
134 S. Ct. 2334 (2014) ................................................................................... 14
Texas v. United States,
787 F.3d 733 (5th Cir. 2015) .......................................................................... 15
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ......................................................................... 53
United States v. Alvarez,
638 F.3d 666 (9th Cir. 2011) ......................................................................... 12
United States v. American–Foreign S.S. Corp.,
363 U.S. 685 (1960) ...................................................................................... 12
United States v. Burdeau,
180 F.3d 1091 (9th Cir. 1999) ....................................................................... 12
United States v. Raya-Vaca,
771 F.3d 1195 (9th Cir. 2014) ....................................................................... 27
United States v. Students Challenging Regulatory Agency Procedures,
412 U.S. 669 (1973) ...................................................................................... 15
United States v. Windsor,
133 S. Ct. 2675 (2013) .................................................................................. 42
Vasquez v. Los Angeles Cty.,
487 F.3d 1246 (9th Cir. 2007) ....................................................................... 38
Wallace v. Jaffree,
472 U.S. 38 (1985) .................................................................................. 37, 38

viii

Washington v. Trump,
2017 WL 469608 (9th Cir. Feb. 4, 2017) ........................................................ 9
Washington v. Trump,
2017 WL 526497 (9th Cir. Feb. 9, 2017) .................... 9, 11, 13-17, 19, 21-26,
................................................................................... 29-31, 33-34, 36, 42, 47-53
White v. Lee,
227 F.3d 1214 (9th Cir. 2000) ....................................................................... 30
Zadvydas v. Davis,
533 U.S. 678 (2001) ................................................................................ 23, 27
Zetino v. Holder,
622 F.3d 1007 (9th Cir. 2010) ....................................................................... 29
Constitutional Provisions
U.S. Const. amend. I ......................................................................................... 34
U.S. Const. amend. V.................................................................................. 27, 39
U.S. Const., art. I, § 8........................................................................................ 23
Statutes
8 U.S.C. § 1152 ................................................................................................. 45
8 U.S.C. § 1158(a)(1) ........................................................................................ 28
8 U.S.C. § 1152(a)(1)(A) ................................................................ 21, 44, 45, 46
8 U.S.C. § 1231(b) ............................................................................................ 28
8 U.S.C. § 1182(f) ....................................................................................... 43, 46

ix

Immigration and Nationality Act of 1952,
Pub. L. 82-414 ............................................................................................... 43
Immigration and Nationality Act of 1965,
Pub. L. No. 89-236 (Oct. 3, 1965)........................................................... 21, 43
Minn. Stat. § 363A.02........................................................................................ 20
United Nations Convention Against Torture , implemented in the
Foreign Affairs Reform and Restructuring Act of 1998,
Pub. L. No. 105-277, div. G, Title XXII, § 2242,
112 Stat. 2681, 2681-822 (1998) ................................................................... 28
Wash. Rev. Code § 49.60.010............................................................................ 20
Court Rules
Cir. Rule 27-10(a)(3) .................................................................................. 10, 11
Cir. Rule 27-10(b) ....................................................................................... 10, 11
Circuit Advisory Committee Note to Rule 27-10 ....................................... 10, 11
Cir. Rule 35-1.................................................................................................... 12
Oral Argument
Washington v. Trump, No. 17-35105 (Feb. 7, 2017)
http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00000
10885
Oral Argument at 1:05:14-1:05:46, , ............................................................. 11
Oral Argument at 7:10-12:15; 1:05:14-1:05:46 ............................................ 47
Executive Orders
Executive Order No. 13,769 (Jan. 27, 2017) ............................................. passim

x

Other Authorities
Abby Jackson, The 10 US colleges that stand to lose the most from
Trump’s immigration ban, Business Insider (Feb. 1, 2017)
http://www.businessinsider.com/colleges-potentially-most-affectedtrump-immigration-ban-2017-2 .................................................................... 16
Congressional Research Service, Executive Auth. to Exclude Aliens:
In Brief (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/
R44743.pdf .................................................................................................... 45
Dep’t of Homeland Security, Fact Sheet: Protecting The Nation From
Foreign Terrorist Entry To The United States (Jan. 29, 2017),
https://www.dhs.gov/news/2017/01/29/protecting-nation-foreignterrorist-entry-united-states ........................................................................... 45
Evan Perez, Pamela Brown, & Kevin Liptak, Inside the confusion of
the Trump executive order and travel ban, CNN (Jan. 30, 2017),
http://www.cnn.com/2017/01/28/politics/donald-trump-travelban/index.html ................................................................................................. 5
Glenn Kessler, The number of people affected by Trump’s travel ban:
About 90,000, Washington Post (Jan. 30, 2017), https://www.wash
ingtonpost.com/news/fact-checker/wp/2017/01/30/the-number-ofpeople-affected-by-trumps-travel-ban-about-90000/?utm_term
=.caa5dc63b2c4 ............................................................................................... 5
Jaweed Kaleem, Nearly 60,000 visas revoked since Trump’s
immigration order, Los Angeles Times (Feb. 3, 2017),
http://www.latimes.com/
politics/washington/la-na-essential-washington-updates-more-than100-000-visas-revoked-since-1486148132-htmlstory.html ............................ 5
Jordan Fabian & Ben Kamisar, Confusion as Priebus says maybe
Trump will go to Supreme Court,
http://thehill.com/homenews/administration/
319029-trump-not-planning-to-appeal-travel-ban-ruling-tosupreme-court (Feb. 10, 2017) ...................................................................... 13

xi

Lovelace, Full 9th Circuit may review Trump immigration ban ruling,
http://www.washingtonexaminer.com/full-9th-circuit-may-reviewtrump-immigration-band-ruling/article/2614556 (Feb. 10, 2017) ................ 13
Lynda Mapes, Joy at Sea-Tac: Families reunite after courts halt
travel ban, Seattle Times (Feb. 5, 2017),
http://www.seattletimes.com/seattle-news/crime/joy-at-sea-tacfamilies-reunite-after-courts-postpone-travel-ban/; Mathis,
Travelers Arrive in US to Hugs and Tears After Ban Is Lifted, New
York Times (Feb. 5, 2017), https://www.nytimes.com/
aponline/2017/02/04/us/ap-us-trump-travel-ban-impact.html?_r=0 ............... 8
Meisam Haghighi, Beyond the Visa Ban: Inside Stories (Feb. 2, 2017),
https://www.youtube.com/watch?feature=youtu.be&v=i3hOwva8is
c&app=desktop ................................................................................................ 7
Nick Gass, Trump not bothered by comparisons to Hitler, Politico
(Dec. 8, 2015), http://www.politico.com/trump-muslims-shutdownhitler-comparison............................................................................................. 2
President-Elect Trump Remarks in Palm Beach, Florida, C-SPAN
(Dec. 21, 2016), https://www.c-span.org/video/?4205831/presidentelect-trump-calls-berlin-terrorist-attack-attack-humanity ............. 3
The American Presidency Project, Presidential Debates: Presidential
Debate at Washington University in St. Louis, Missouri (Oct. 9,
2016), http://www.presidency.ucsb.edu/ws/index.php?pid=119038 .............. 3
The American Presidency Project, Presidential Debates: Republican
Candidates Debate in North Charleston, South Carolina (Jan. 14,
2016), http://www.presidency.ucsb.edu/ws/index.php?pid=111395 .............. 2
Trump Signs Executive Orders at Pentagon, ABC News (Jan. 27,
2017), http://abcnews.go.com/Politics/video/trump-signs-executiveorders-pentagon-45099173.............................................................................. 4

xii

I.

INTRODUCTION

In a careful, thoughtful, and narrow opinion, a panel of this Court
rejected Defendants’ emergency motion for stay. The panel properly held that
Defendants fell short of their burden on several fronts: (1) Defendants failed to
show irreparable injury because the district court order that Defendants sought
to stay simply restored the status quo; (2) Defendants failed to show a
likelihood of success on appeal because the Plaintiff States had established at
least one clear constitutional violation (and other likely violations); and (3) the
public interest and balance of harms tip decisively against Defendants.
In reaching these conclusions, the panel created no conflict with
precedent of this Court or the Supreme Court; rather, the panel’s opinion is
firmly grounded in precedent. There is thus no basis for en banc review,
especially given the interlocutory nature of Defendants’ motion and the
cautious approach of the panel’s opinion. Granting en banc review would
simply delay the merits of the preliminary injunction appeal to no substantive
purpose. The Court should decline.
II.

FACTS

Donald Trump campaigned on the promise that he would ban Muslims
from entering the United States. In December 2015, he issued a press release

1

entitled: “Donald J. Trump Statement on Preventing Muslim Immigration.”
First Amended Complaint, WD ECF 18, ¶¶ 42-43; WD ECF 18-1. In this press
release, Trump asserted that “there is great hatred towards Americans by large
segments of the Muslim population.” WD ECF 18-1. He called for “a total and
complete shutdown of Muslims entering the United States.” WD ECF 18, ¶ 43;
WD ECF 18-1.
Shortly after issuing this press release, Trump defended and reiterated
this promise. WD ECF 18, ¶¶ 44-46. He compared the Muslim ban to the
internment of Japanese Americans during World War II. WD ECF 18, ¶ 44;
WD ECF 18-2. He proposed an entry process that would exclude Muslim noncitizens from the country if they admitted that they were Muslim. 1 And he
steadfastly refused to rethink his position about “banning Muslims from
entering the country[,]” claiming that “we have to stop with political
correctness.”2
Trump reaffirmed this promise throughout his campaign. Although
Trump began referring to his plan in terms of “territories” or “extreme vetting,”
1

Nick Gass, Trump not bothered by comparisons to Hitler, Politico
(Dec. 8, 2015), http://www.politico.com/trump-muslims-shutdown-hitlercomparison.
2
The American Presidency Project, Presidential Debates: Republican
Candidates Debate in North Charleston, South Carolina (Jan. 14, 2016),
http://www.presidency.ucsb.edu/ws/index.php?pid=111395.

2

he continued to make it clear that he intended to enact a Muslim ban. When
asked whether he was “backing off on his Muslim ban[ ],” Trump responded: “I
actually don’t think it’s a pull-back. In fact, you could say it’s an expansion.”
WD ECF 18, ¶ 46; WD ECF 18-4. He explained: “I’m looking now at
territories. People were so upset when I used the word Muslim.” WD ECF 184, at 7. And when asked whether “the Muslim ban still stands” he replied: “It’s
called extreme vetting.”3
Even after his election, Trump maintained his position. When asked
whether he had decided “to rethink or re-evaluate [his] plans to create a
Muslim registry or ban Muslim immigration to the United States,” he replied:
“You know my plans. All along, I’ve been proven to be right.”4
Within one week of taking office, President Trump acted on this promise
by signing Executive Order No. 13,769, entitled “Protecting the Nation from
Foreign Terrorist Entry into the United States” (“the Executive Order”). WD
ECF 18, ¶ 49; WD ECF 18-7. The Executive Order radically changed
immigration policy. It imposed a 120-day moratorium on the refugee
3

The American Presidency Project, Presidential Debates: Presidential
Debate at Washington University in St. Louis, Missouri (Oct. 9, 2016),
http://www.presidency.ucsb.edu/ws/index.php?pid=119038.
4
President-Elect Trump Remarks in Palm Beach, Florida, C-SPAN
(Dec. 21, 2016), https://www.c-span.org/video/?420583-1/presidentelecttrump-calls-berlin-terrorist-attack-attack-humanity.

3

resettlement program; indefinitely suspended the entry of Syrian refugees; and
suspended for 90 days the entry of all immigrants and nonimmigrants from
seven majority-Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and
Yemen. WD ECF 18, ¶¶ 49-52; WD ECF 18-7. When signing the Executive
Order, President Trump read its title aloud and said: “We all know what that
means.”5
President Trump and his advisors subsequently confirmed the Executive
Order’s discriminatory purpose. See WD ECF 18, ¶¶ 53, 61. One advisor
indicated that the Executive Order was crafted to be a “legal” ban on Muslims.
WD ECF 18, ¶ 61. He explained that President Trump wanted to enact a
“Muslim ban” and instructed him to “put a commission together” to “show
[Trump] the right way to do it legally.” WD ECF 18, ¶ 61. In addition,
President Trump confirmed that Christians in the Middle East would be given
priority for admission as refugees. WD ECF 18, ¶ 53.
The Executive Order unleashed chaos around the world. Over the next
few days, nearly 60,000 visas were revoked,6 hundreds of people were
5

Trump Signs Executive Orders at Pentagon, ABC News (Jan. 27,
2017),
http://abcnews.go.com/Politics/video/trump-signs-executive-orderspentagon-45099173.
6
Jaweed Kaleem, Nearly 60,000 visas revoked since Trump’s
immigration
order,
Los
Angeles
Times
(Feb.
3,
2017),

4

prevented from boarding airplanes bound for the United States or denied entry
upon landing, and many travelers were detained at U.S. airports.7 This chaos
was compounded by Defendants’ conflicting and ever-changing positions
about the applicability of the Executive Order to lawful permanent residents.
WD ECF 18, ¶¶ 57-59; WD ECF 18-13; WD ECF 18-14; WD ECF 18-15.8
The States of Washington and Minnesota were immediately and
significantly impacted. Over 7,000 noncitizen immigrants from the affected
countries reside in Washington, and thousands more are U.S. citizens. WD
ECF 18, ¶ 11; WD ECF 4, ¶ 7, Ex. A. Over 30,000 Minnesota residents were
born in the affected countries. WD ECF 18, ¶ 31. Their lives changed
overnight. WD ECF 18, ¶¶ 21-23; WD ECF 33, ¶¶ 5-9; WD ECF 8, ¶¶ 11-13;
WD ECF 43, ¶¶ 5-9. Residents temporarily abroad were blocked from
returning home. WD ECF 33, ¶¶ 7-8. Residents in the United States faced
considerable uncertainty about whether they could travel and whether
http://www.latimes.com/politics/washington/la-na-essential-washingtonupdates-more-than-100-000-visas-revoked-since-1486148132-htmlstory.html.
7
Glenn Kessler, The number of people affected by Trump’s travel ban:
About
90,000,
Washington
Post
(Jan.
30,
2017),
https://www.washingtonpost.com/news/fact-checker/wp/2017/01/30/thenumber-of-people-affected-by-trumps-travel-ban-about-90000/?utm_term
=.caa5dc63b2c4.
8
See also Evan Perez, Pamela Brown, & Kevin Liptak, Inside the
confusion of the Trump executive order and travel ban, CNN (Jan. 30, 2017),
http://www.cnn.com/2017/01/28/politics/donald-trump-travel-ban/index.html.

5

vulnerable loved ones would be able to join them. WD ECF 8, ¶¶ 5, 7; WD
ECF 18, ¶ 22; WD ECF 33, ¶¶ 7-8. For some with serious medical conditions,
the situation was especially dire. See, e.g., WD ECF 33, ¶ 8; WD ECF 43, ¶ 5.
This chaos and uncertainty tore families apart, undermined personal freedoms,
jeopardized individuals’ economic security, and endangered the lives and
safety of many.
The States’ economies and businesses were also immediately impacted.
WD ECF 18, ¶¶ 12-17, 35. Washington receives substantial sales tax revenue
every year from travelers from the seven countries and immediately began
losing some of that revenue. See WD ECF 17-1, ¶¶ 3-11. Washington-based
travel company Expedia began incurring costs assisting its customers who were
suddenly banned from travel to the United States. WD ECF 7, ¶¶ 12-14, 20.
Washington companies Amazon, Expedia, and Microsoft depend on skilled
immigrants to operate and grow their businesses, and the Executive Order
diminished their ability to recruit. WD ECF 18, ¶¶ 12-17; WD ECF 6, ¶¶ 3-4,
11; WD ECF 7, ¶¶ 7, 9, 21. Further, many employees were unable to travel
internationally, which impaired business operations. WD ECF 7, ¶¶ 15-20; WD
ECF 6, ¶¶ 7-11; WD ECF 18, ¶¶ 14-15.

6

The Executive Order also caused immediate harm to the States’ public
universities, which are state agencies. Hundreds of their faculty, staff, and
students are from the affected countries. WD ECF 18, ¶¶ 28, 32; WD ECF 9,
¶ 5; WD ECF 5, ¶ 5; WD ECF 17-3, ¶¶ 4, 6; WD ECF 17-2, ¶ 10; WD ECF
17-4, ¶ 5. The Executive Order instantly stranded some faculty members and
students overseas, prevented others from traveling for scholarship or family
visits, halted critical research, jeopardized research programs, and harmed the
universities’ overall academic missions.9 WD ECF 9, ¶¶ 6-8; WD ECF 5, ¶¶
6-9; WD ECF 17-2, ¶¶ 3-13; WD ECF 17-4, ¶¶ 5-8; WD ECF 67, ¶ 2. In
addition, the Executive Order exposed the universities to various financial
losses, including lost investments on visas for interns and employees the
universities had sponsored, lost conference fees, and lost tuition. WD ECF 18,
¶¶ 26-27; WD ECF 17-2, ¶ 10; WD ECF 66, ¶¶ 4-8; WD ECF 67, ¶¶ 2-4.
Due to these immediate and serious harms, Washington filed a complaint
and motion for temporary restraining order (TRO) on January 30. WD ECF 3.
Minnesota soon joined, alleging similar harms. See WD ECF 18, ¶¶ 30-36. On
9

A video documenting the impact on members of Washington State
University’s Iranian Students Association of WSU is available online at
Meisam Haghighi, Beyond the Visa Ban: Inside Stories (Feb. 2, 2017),
https://www.youtube.com/watch?feature=youtu.be&v=i3hOwva8isc&app=des
ktop.

7

February 3, the district court entered a TRO barring Defendants from enforcing
several sections of the Order. WD ECF 52.
The TRO had immediate, positive effects: families were able to reunite,
students and faculty were able to return home, and travel for business and to
visit loved ones resumed.10 The State Department declared that it was
reinstating visas that had been revoked pursuant to the Executive Order. 9th
ECF 29-1, Exs. A, B. The Department of Homeland Security started processing
travelers with visas as normal and began processing travelers with standard
inspection and security procedures. Id. Exs. E, B, F. Customs and Border
Protection directed that nationals of the seven countries and refugees
presenting a valid visa or green card be permitted to travel to the United States.
Id. Ex. G. Major airlines announced that they would comply with this directive,
and travelers from the previously banned countries began arriving at U.S.
airports. Id., Exs. G, H, I, J, B, D.
On February 4, Defendants noticed an appeal of the TRO and sought an
emergency stay. WD ECF 53; Emergency Motion Under Circuit Rule 27-3 for
10

E.g., Lynda Mapes, Joy at Sea-Tac: Families reunite after courts halt
travel ban, Seattle Times (Feb. 5, 2017), http://www.seattletimes.com/seattlenews/crime/joy-at-sea-tac-families-reunite-after-courts-postpone-travel-ban/;
Mathis, Travelers Arrive in US to Hugs and Tears After Ban Is Lifted, New
York Times (Feb. 5, 2017), https://www.nytimes.com/aponline/2017/02/04/
us/ap-us-trump-travel-ban-impact.html?_r=0.

8

Administrative Stay and Motion for Stay Pending Appeal, No. 17-35105. 9th
ECF 14. A three-judge panel of this Court denied Defendants’ request for an
immediate administrative stay and set deadlines for briefing on Defendants’
emergency stay motion. Washington v. Trump, 2017 WL 469608 (9th Cir.
Feb. 4, 2017). On February 7, the panel heard oral argument on the emergency
stay motion. Two days later, it issued a published, per curiam order denying the
motion, Washington v. Trump, 2017 WL 526497 (9th Cir. Feb. 9, 2017), and it
set an expedited briefing schedule for the appeal. 9th ECF 135.
The panel concluded that Defendants had not satisfied their burden in
several respects. For one, the panel concluded that Defendants had not shown a
likelihood of success on the merits of their appeal, because the States have
viable due process claims and may also succeed on their religious
discrimination claims. See Washington, 2017 WL 526497, at *8-10. The panel
also concluded that Defendants failed to show irreparable injury, because the
TRO simply restored the status quo. Id. at *10. Finally, the panel concluded
that the competing public interests do not justify a stay. Id. at *11.
On February 10, this Court requested briefing from the parties on
whether the order issued by the three judge panel should be reconsidered en
banc. ECF 139 (Order, No. 17-35105 (9th Cir. Feb. 10, 2017)).

9

III.

ARGUMENT

The panel properly denied a stay of the district court’s order. Briefing on
the merits of the preliminary injunction appeal is proceeding on an expedited
schedule. There is no need for en banc review of the panel’s interlocutory
decision, which correctly stated the standard for obtaining a stay, correctly
articulated the controlling legal principles, and properly applied those
principles to the facts presented.
A.

The Criteria Justifying En Banc Review Are Missing Here
En banc reconsideration of the panel’s order is unwarranted because the

threshold criteria for such extraordinary review are not satisfied under the
Circuit’s rules for en banc reconsideration of a motions panel order or the
broader principles governing en banc review.
Under the Circuit Rules, en banc reconsideration of an order issued by a
motions panel (as opposed to a merits panel) is “not favored,” and requires a
showing that the panel has “overlooked or misunderstood a point of law or
fact” or that there has been “a change in legal or factual circumstances after the
order which would entitle the movant to relief.” Circuit Advisory Committee
Note to Rule 27-10; see Cir. Rule 27-10(a)(3), (b). This case does not meet
those criteria.

10

First, the panel’s order thoroughly considered the legal precedent and the
parties’ arguments and neither overlooked nor misunderstood a point of law or
fact. As detailed in the remainder of this brief, the panel’s legal conclusions are
amply supported by precedent. See infra at 13-53. And the panel’s factual
conclusions are unassailable, especially given that Defendants have submitted
no evidence whatsoever, either in opposing the States’ request for TRO in the
district court or in support of their motion for stay. See Washington, 2017 WL
526497, at *10-11. In fact, the panel repeatedly pressed Defendants about the
factual basis for Defendants’ position, but Defendants offered none. Oral
Argument at 1:05:14-1:05:46, Washington v. Trump, No. 17-35105 (Feb. 7,
2017),

http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00000

10885; see also Washington, 2017 WL 526497, at *10 n.8 (noting that
Defendants could have shared classified information with the Court under seal,
but did not).
Second, there has been no “change in legal or factual circumstances after
the order which would entitle the movant to relief.” Circuit Advisory
Committee Note to Rule 27-10; see Cir. Rule 27-10(a)(3), (b). To the contrary,
the most relevant legal development since the panel opinion came when the
U.S. District Court for the Eastern District of Virginia recently granted

11

Virginia’s motion for a preliminary injunction in a similar challenge to the
Executive Order and provided further support for the panel’s conclusions. See
Aziz v. Trump, 2017 WL 580855 (E.D. Va. Feb. 13, 2017).
En banc review is also unwarranted under the well-established principles
governing such review generally. The Court typically grants such review only
where “the opinion of a panel directly conflicts with an existing opinion by
another court of appeals and substantially affects a rule of national application
in which there is an overriding need for national uniformity[.]” Cir. Rule 35-1;
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003); United States v. Alvarez,
638 F.3d 666, 676 (9th Cir. 2011) (Smith, J. and Kozinski, J., concurring in
denial of rehearing en banc).11 Here, Defendants cannot plausibly assert a
11

See also, e.g., United States v. American–Foreign S.S. Corp., 363 U.S.
685, 689 (1960) (“En banc courts are the exception, not the rule.”); Missouri v.
Jenkins, 495 U.S. 33, 47 n.14 (1990) (“Rehearing in banc is a discretionary
procedure employed only to address questions of exceptional importance or to
maintain uniformity among Circuit decisions.”); Makaeff v. Trump Univ., LLC,
736 F.3d 1180, 1187 (9th Cir. 2013) (Wardlaw and Callahan, JJ., concurring in
denial of rehearing en banc) (id. at 1180, explaining such review unwarranted
where “panel opinion faithfully follows our circuit’s precedent, creates no
inter-circuit split, does not present an issue of exceptional importance”); United
States v. Burdeau, 180 F.3d 1091, 1092 (9th Cir. 1999) (Tashima, J.,
concurring in order denying rehearing en banc) (stating “criteria for taking a
case en banc are clear and well-established—either necessity to secure or
maintain uniformity of the court’s decisions, or to decide a question of
exceptional importance,” and collecting cases (internal quotation marks
omitted)).

12

conflict between the panel’s opinion and any other opinion of this Court,
another court of appeals, or the Supreme Court.
Finally, it is noteworthy that Defendants have sought neither en banc
review nor emergency relief from the Supreme Court. Rather, they have stated
an intent to litigate this case on the merits in the district court.12 Even where an
issue “is exceptionally important,” the issue may not warrant en banc review
where it “does not matter to the parties,” is “not inconsistent with Ninth Circuit
precedent, and does not resolve a circuit split.” See Kyocera Corp. v.
Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 1005-06 (9th Cir. 2003)
(Rymer, J., writing separately to dismiss en banc review as improvidently
granted). En banc review is thus inappropriate on many independent grounds.
B.

The Panel Correctly Described the Standard for Obtaining a Stay
As the panel explained: “A stay is not a matter of right, even if irreparable

injury might otherwise result.” Washington, 2017 WL 526497, at *7 (quoting
Nken v. Holder, 556 U.S. 418, 433 (2009)). Defendants bear the heavy burden

12

See, e.g., Jordan Fabian & Ben Kamisar, Confusion as Priebus says
maybe
Trump
will
go
to
Supreme
Court,
The
Hill,
http://thehill.com/homenews/administration/319029-trump-not-planning-toappeal-travel-ban-ruling-to-supreme-court (Feb. 10, 2017); Ryan Lovelace,
Full 9th Circuit may review Trump immigration ban ruling, Wash. Examiner,
http://www.washingtonexaminer.com/full-9th-circuit-may-review-trumpimmigration-band-ruling/article/2614556 (Feb. 10, 2017).

13

of showing (1) a strong likelihood of success on the merits, (2) the likelihood
of irreparable injury if relief is not granted, (3) a balance of hardships favoring
Defendants, and (4) that reinstating the Executive Order is in the public
interest. See Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The first two
factors are the most critical. Nken, 556 U.S. at 434.13 As detailed below, the
panel properly concluded that Defendants failed to meet their burden here.
C.

The Panel Correctly Concluded That the States Have Standing
The States established standing by demonstrating that they have suffered

concrete, actual, and imminent injuries; that these injuries are traceable to the
Executive Order; and that the injuries will be remedied by a favorable decision.
Washington, 2017 WL 526497, at *3; Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992). As the panel correctly noted, “[a]t this very preliminary
stage of the litigation,” the States may rely on allegations in the complaint and
the evidence filed in support of the motion for a TRO to establish standing.
Washington, 2017 WL 526497, at *3 (citing Lujan, 504 U.S. at 561); Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014); Am. Fed’n of Gov’t

13

The States argued to the panel that the temporary restraining order was
not appealable and that Defendants’ only remedy was mandamus. The panel
rejected the States’ argument. Washington, 2017 WL 526497, at *2-3. Without
waiving the issue, the States do not request that this aspect of the panel’s
decision be reviewed en banc.

14

Emps. Local 1 v. Stone, 502 F.3d 1027, 1032 (9th Cir. 2007) (citing Lujan v.
Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)).
The panel correctly held that the States have standing based on injury to
their proprietary interests. Washington, 2017 WL 526497, at *5. And though the
panel found no need to reach the issue, the States also have standing as parens
patriae to protect their quasi-sovereign interests in the well-being of state
residents. Id. at *4-5, n.5.
1.

The States have proprietary standing

The panel correctly concluded that the Executive Order has caused
concrete and particularized injuries to the States’ proprietary interests. Id. at *5.
Proprietary standing can be established based on even modest financial harms.
See, e.g., United States v. Students Challenging Regulatory Agency
Procedures, 412 U.S. 669, 689 n.14 (1973) (recognizing that important
interests may be vindicated with no more at stake than a $5 fine or a $1.50 poll
tax); Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 932
(9th Cir. 2008) (holding that an “identifiable trifle” is sufficient to establish
standing); Texas v. United States, 787 F.3d 733, 748 (5th Cir. 2015) (holding that
Texas had standing to challenge a federal immigration directive based solely on

15

the cost of issuing driver’s licenses to the beneficiaries of deferred immigration
action—approximately $130 per license).
The Executive Order has caused significant and direct harm to the States’
universities, which are branches of the States. Washington, 2017 WL 526497, at
*3-4. As the panel found, “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.” Id. at *4. Meanwhile, “[t]he schools cannot consider attractive
student candidates and cannot hire faculty from the seven affected countries,
which they have done in the past,” and the schools have incurred costs, including
costs of visa applications, that will be lost under the Order. Id. The panel did not
invent these harms; they are firmly grounded in the record. See WD ECF 9, ¶¶ 5,
7-8; WD ECF 5, ¶ 5; WD ECF 17-2, ¶¶ 4-10; WD ECF 17-3, ¶¶ 4, 6; WD ECF
17-4, ¶¶ 3,7;14 WD ECF 66, ¶¶ 5-8. The bottom line is that it is essentially
undisputed that the Executive Order has harmed both the financial well-being and
the academic mission of the schools.
14

The Executive Order is harming universities across the country. See
Abby Jackson, The 10 US colleges that stand to lose the most from Trump’s
immigration
ban,
Business
Insider
(Feb.
1,
2017),
http://www.businessinsider.com/colleges-potentially-most-affected-trumpimmigration-ban-2017-2.

16

As the panel recognized, these injuries to the state universities give the
States standing, including standing to assert the rights of the students, scholars,
and faculty affected by the Order. Washington, 2017 WL 526497, at *4. Citing a
mountain of authority, the panel noted that “schools have been permitted to assert
the rights of their students.” Id. (citing Runyon v. McCrary, 427 U.S. 160, 175 &
n.13 (1976) (holding that schools have standing to assert arguments on behalf of
students)); Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1487-88 (9th Cir.
1995) (rejecting argument that school lacked standing to claim discrimination
against minority students). And more generally, the panel noted that the harms to
the state universities and their students easily meet traditional third party standing
principles because the state universities’ injuries are “inextricably bound up” with
their students’ interests and the universities are “fully, or very nearly, as effective
a proponent” of the students’ rights. Singleton v. Wulff, 428 U.S. 106, 114-16
(1976); see also, e.g., Griswold v. Connecticut, 381 U.S. 479 (1965) (allowing
doctors to assert patients’ interests); NAACP v. Alabama, 357 U.S. 449 (1958)
(allowing an organization to pursue a discrimination claim on behalf of its
members).
Though the panel saw no need to go beyond the proprietary harms to the
States’ universities, the States also suffered injuries to their proprietary interests

17

by a loss of tax revenue. Washington receives substantial tax revenues every year
from travelers from the countries impacted by the travel ban. WD ECF 17-1,
¶¶ 3-8. Washington also stands to lose tax revenue from businesses harmed by
the Order, as well as revenue from legal, non-citizen residents who are being
prevented from returning to their homes and jobs. WD ECF 17-1,¶ 6; WD ECF 7,
¶¶ 9, 11-12; WD ECF 8, ¶¶ 6-14. Losing these tax revenues is a real, tangible,
and immediate harm, even putting aside the Order’s longer-term consequences
for the States’ economies. WD ECF 18, ¶¶ 12-17, 24-25; see, e.g., Sausalito v.
Oneill, 386 F.3d 1186, 1198 (9th Cir. 2004) (holding that lost property and
sales tax revenues caused by increased traffic established standing without any
numeric quantification of the harm).
The direct impacts to the States’ universities, students, faculty, and tax
revenue cement the injury-in-fact required for proprietary standing. Far from
being speculative, these impacts began occurring the moment the Order took
effect.
2.

The States have standing as parens patriae

In addition to proprietary standing, the States’ have standing to protect
their residents as parens patriae. Having concluded that the States have
proprietary standing, the panel did not address this alternative theory of

18

standing. Washington, 2017 WL 526497, at *5 n.5. But it provides an
independent basis for the States’ claims to proceed, as the district court
recognized. WD ECF 52 at 4-5.
As the Supreme Court has long held, when the states joined the union
“[t]hey did not renounce the possibility of making reasonable demands on the
ground of their still remaining quasi-sovereign interests” in the federal courts.
Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907). More recent
Supreme Court decisions confirm that each state has parens patriae standing to
protect “the well-being of its populace.” Alfred L. Snapp & Son, Inc. v. Puerto
Rico, 458 U.S. 592, 593 (1982). In Snapp, the Court held that states have
standing to sue based on discrimination against their residents: “This Court has
had too much experience with the political, social, and moral damage of
discrimination not to recognize that a State has a substantial interest in assuring
its residents that it will act to protect them from these evils.” Id. at 609.
As in Snapp, the States brought this action to protect against the impacts of
discrimination. The Executive Order caused grievous harm to state residents’
well-being during the week it was in place, including harms to those originally
from the listed countries who: were temporarily overseas and were prevented
from returning to their homes, jobs and families; live in the States and wished to

19

travel overseas for professional or personal reasons; or live in the States and were
unable to receive visits from their friends and family. WD ECF 8, ¶¶ 6-14; WD
ECF 18, ¶¶ 18-23, 31-36. The Executive Order affects not just those individuals,
but also Washington and Minnesota residents who have emphatically rejected the
discrimination embodied in the Order. See, e.g., Wash. Rev. Code § 49.60.010;
Minn. Stat. § 363A.02.
Defendants never meaningfully disputed these harms, instead arguing
that state parens patriae suits against the federal government are forbidden by
Massachusetts v. Mellon, 262 U.S. 447 (1923). Not so. As the Supreme Court
has recognized, “Mellon itself disavowed any such broad reading when it noted
that the Court had been ‘called upon to adjudicate, not rights of person or
property, not rights of dominion over physical domain, [and] not quasisovereign rights actually invaded or threatened.’ ” Massachusetts v. EPA, 549
U.S. 497, 520 n.17 (2007) (alteration in original) (quoting Mellon, 262 U.S. at
484-85). And in Massachusetts v. EPA, the Court clarified that “there is a
critical difference between allowing a State ‘to protect her citizens from the
operation of federal statutes’ (which is what Mellon prohibits) and allowing a
State to assert its rights under federal law (which it has standing to do).” Id.
Here, the States seek not to protect their residents from federal statutes, but to

20

protect their residents against Defendants’ violations of federal law. This is
what States “ha[ve] standing to do.” Id.
The right of the States to ensure that their residents “are not excluded
from the benefits” of the federal system also was specifically recognized in
Snapp. Snapp, 458 U.S. at 608. The Court determined that “the State need not
wait for the Federal Government to vindicate the State’s interest in the removal
of barriers to the participation by its residents in the free flow of interstate
commerce.” Id. By the same token, the States need not wait for the federal
government to vindicate their residents’ constitutional rights to due process and
religious freedom. In addition to protecting constitutional rights, Snapp
specifically holds that States have parens standing to eliminate discrimination
by pursuing their residents’ interests in protection under federal immigration
statutes. Id. at 609-10. Thus, the States have standing to pursue the protections
against discrimination afforded by the Immigration and Nationality Act of
1965. 8 U.S.C. § 1152(a)(1)(A).
D.

The Panel Correctly Concluded That Courts Have Power to Review
Executive Action, Even When It Relates to National Security or
Immigration
Defendants contend that President Trump wields “unreviewable”

authority to make immigration policy. Washington, 2017 WL 526497, at *5.

21

Not so. As the panel correctly held: “There is no precedent to support this
claimed unreviewability, which runs contrary to the fundamental structure of
our constitutional democracy.” Id.
The Supreme Court has consistently held that the Constitution does not
grant the President or Congress “the power to decide when and where its terms
apply.” Boumediene v. Bush, 553 U.S. 723, 765 (2008). Even “concerns of
national security and foreign relations do not warrant abdication of the judicial
role.” Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010). Although
substantial deference is provided to national security decisions, the courts’
“time-honored and constitutionally mandated roles of reviewing and resolving
claims” are not displaced even by “threats to military operations.” Hamdi v.
Rumsfeld, 542 U.S. 507, 535 (2004) (plurality opinion).
The panel correctly recognized and applied these principles here,
explaining that “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.’ ” Washington, 2017 WL 526497, at
*6 (alterations in original) (quoting Humanitarian Law Project, 561 U.S. at
34). Defendants’ assertion of “unreviewable” authority is not unique to this
litigation. But abdicating the courts’ constitutional role would be.

22

Similarly, despite Defendants’ references to “plenary” power over
immigration, 9th ECF 14 at 4—which actually resides with Congress, see U.S.
Const., art. I, § 8—the panel also properly recognized that the political
branches’ power over immigration is “subject to important constitutional
limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001). The Supreme Court
has confirmed the judicial authority to review “whether Congress has chosen a
constitutionally permissible means” of exercising its immigration power. INS v.
Chadha, 462 U.S. 919, 941 (1983). As the panel explained, the Ninth Circuit
“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’ ” to ensure protection of constitutional
rights. Washington, 2017 WL 526497, at *5 (quoting American-Arab AntiDiscrimination Comm. v. Reno, 70 F.3d 1045, 1056 (9th Cir. 1995)); see also
Diouf v. Napolitano, 634 F.3d 1081, 1091 (9th Cir. 2011) (refusing to defer to
DHS’s regulations because the regulations “raise[d] serious constitutional
concerns”).
Finally, the panel correctly determined that Kleindienst v. Mandel, 408
U.S. 753 (1972), “does not compel a different conclusion.” Washington, 2017
WL 526497, at *6. Mandel involved an executive branch decision to deny a

23

visa to an individual. The Court held that it would not look behind the stated
reasons for such a decision if the denial was supported by a “facially legitimate
and bona fide” reason. Mandel, 408 U.S. at 769. But unlike Mandel, this case
does not involve the application of a congressionally established policy to one
individual non-resident alien. The challenge is to radical changes in
“immigration policy” ordered by executive fiat, not the application of
congressionally enacted standards to an individual. Washington, 2017 WL
526497, at *6.
The Supreme Court’s consistent recognition of judicial authority to
review the constitutionality of immigration and national security decisions
makes eminent sense in light of our nation’s troubling experience with blanket
decrees based on nationality. If our history teaches anything, it is that courts
should exercise caution when asked to defer to the federal government’s claim
that its expertise in foreign affairs entitles it to engage in class-based
discrimination. Cf. Chae Chan Ping v. United States, 130 U.S. 581, 606 (1889)
(citing Congress’s judgment that “the presence of foreigners of a different race
in this country, who will not assimilate with us, [is] dangerous to [the
country’s] peace and security”). “Individuals must not be left impoverished of
their constitutional rights on a plea of military necessity that has neither

24

substance nor support.” Korematsu v. United States, 323 U.S. 214, 234 (1944)
(Murphy, J., dissenting).
There is simply no support for Defendants’ insistence that the courts lack
authority to consider the constitutionality of the Executive Order.
E.

The Panel Correctly Concluded That Defendants Failed To Show a
Likelihood of Success on Appeal
The States’ complaint alleges that the Order violates many constitutional

and statutory provisions. WD ECF 18. While all of those claims have merit, time
and space constraints forced the States to brief only four of the claims in the TRO
motion. The panel understandably issued a narrow opinion that focused primarily
on the States’ likelihood of success on just one of those claims, while noting that
other claims “raise serious allegations and present significant constitutional
questions.” Washington, 2017 WL 526497, at *10. The panel was correct in
concluding that Defendants failed to show a likelihood of success on appeal.
1.

Defendants failed to show a likelihood of success on the Due
Process claim

The panel concluded that Defendants failed to meet their burden to
obtain a stay because they showed no likelihood of success on appeal as to the
States’ due process claim. The panel was correct.

25

As the panel explained, the States have alleged that the Order violates
due process “in at least three independent ways.” Washington, 2017 WL
526497, at *8. First, the Order “denies re-entry to certain lawful permanent
residents and non-immigrant visaholders without constitutionally sufficient
notice and an opportunity to respond.” Id. Second, the Order 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.” Id. And third,
section 5 of the Order “contravenes the procedures provided by federal statute
for refugees seeking asylum and related relief in the United States.” Id. The
panel correctly held that Defendants had failed to rebut any of these arguments.
Starting with the first two violations, the Order denies entry to the
United States of all persons from the seven impacted countries, regardless of
whether they have lived legally in this country for years. Thus, our States’
residents from these countries who travel abroad will be deported if they
attempt to re-enter the United States, and those who remain will be forced to
forego international travel to avoid that devastating result. This draconian
restriction violates due process.

26

The Fifth Amendment protects all persons in the United States “from
deprivation of life, liberty, or property without due process of law,” regardless
of immigration status. Mathews v. Diaz, 426 U.S. 67, 69, 77 (1976); Zadvydas,
533 U.S. at 693. A temporary absence from the country does not deprive
longtime residents of their right to due process. See, e.g., Landon v. Plasencia,
459 U.S. 21, 33 (1982) (“[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.”); Kwong Hai Chew v. Colding, 344 U.S. 590, 601 (1953).
Due process requires that lawful permanent residents and visaholders not
be denied re-entry to the United States without “at a minimum, notice and an
opportunity to respond.” United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th
Cir. 2014). A resident denied re-entry must receive a “full and fair hearing of
his claims” and “a reasonable opportunity to present evidence on his behalf.”
Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000); Gutierrez v. Holder, 662
F.3d 1083, 1091 (9th Cir. 2011).
The Order’s denial of re-entry to all visaholders and lawful permanent
residents from the impacted countries, without an opportunity to be heard,
violates these principles. The Order also deprives non-citizen residents of our
States of the right to travel, a constitutionally protected liberty interest. Kent v.

27

Dulles, 357 U.S. 116, 125-26 (1958) (holding that Secretary of State could not
deny passports to Communists on the basis that right to travel abroad is a
constitutionally protected liberty interest).
The Order also independently violates due process by denying refugees
and asylum seekers statutory rights guaranteed to them by Congress. Congress
has created a statutory right whereby persons persecuted in their own country
may petition for asylum in the United States.15 Federal law prohibits the return
of a noncitizen to a country where he may face torture or persecution.16
Congress has established procedures to implement those statutory rights, which
include providing refugees the right to present evidence in support of a claim
for asylum, to move for reconsideration of an adverse decision, and to seek
judicial review of a final order denying their claims. Lanza v. Ashcroft, 389
F.3d 917, 927 (9th Cir. 2004).
In enacting these statutory rights, Congress “created, at a minimum, a
constitutionally protected right to petition our government for political
15

8 U.S.C. § 1158(a)(1) (“[a]ny alien who is physically present in the
United States or who arrives in the United States . . . irrespective of such alien’s
status, may apply for asylum in accordance with this section”).
16
See 8 U.S.C. § 1231(b); United Nations Convention Against Torture,
implemented in the Foreign Affairs Reform and Restructuring Act of 1998,
Pub. L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822
(1998) (codified as Note to 8 U.S.C. § 1231).

28

asylum.” Haitian Refugee Ctr. v. Smith, 676 F.2d 1023, 1038 (5th Cir. 1982).
The constitutionally protected right to petition for asylum “invoke[s] the
guarantee of due process.” Id. at 1039; Andriasian v. INS, 180 F.3d 1033, 1041
(9th Cir. 1999); see also Lanza, 389 F.3d at 927 (“The due process afforded
aliens stems from those statutory rights granted by Congress and the principle
that minimum due process rights attach to statutory rights.”). Due process
requires at a minimum that refugees seeking asylum receive a “full and fair
hearing.” Zetino v. Holder, 622 F.3d 1007, 1013 (9th Cir. 2010).
The Order violates these rights because it provides no avenue for
refugees to have their asylum claims heard. Instead, it explicitly states that the
United States will not entertain asylum claims from certain groups for a
specified period of time, regardless of their merits. This contravenes the due
process requirement that refugees receive a “full and fair hearing” on their
claims for relief. Zetino, 622 F.3d at 1013.
Defendants never meaningfully contested these fundamental due process
principles before the panel. Washington, 2017 WL 526497, at *8 (“The
Government has provided no affirmative argument showing that the States’
procedural due process claims fail.”). Instead, they offered three arguments as
to why the States could show no violation here. All fail.

29

First, Defendants argued that the States’ due process claims were
effectively moot because—after much vacillation—they now interpret the
Order not to apply to lawful permanent residents. But the panel properly
rejected this argument because: (1) Defendants originally interpreted the Order
to apply to lawful permanent residents, never changed the text of the Order,
and offered no authority for the claim that their new interpretation would be
binding going forward, thus leaving the panel unable to find it “absolutely clear
that the allegedly wrongful behavior could not reasonably be expected to
recur,” Washington, 2017 WL 526497, at *8 (quoting Friends of the Earth, Inc.,
v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000))17; and (2) even if the
Order no longer applied to lawful permanent residents, it would still apply to
other longtime resident aliens who have due process rights, e.g., “nonimmigrant visaholders who have been in the United States but temporarily
departed or wish to temporarily depart.” Washington, 2017 WL 526497, at *9
(citing Landon, 459 U.S. at 33-34).
Second, Defendants cited South Carolina v. Katzenbach, 383 U.S. 301
(1966), for the proposition that States cannot raise due process claims. But the
panel properly rejected that argument because Katzenbach, unlike this case,
17

See also White v. Lee, 227 F.3d 1214, 1243 (9th Cir. 2000) (mootness
based on voluntary cessation is a “stringent” standard).

30

involved no proprietary harms to a State. Washington, 2017 WL 526497, at *45.Where, as here, a state asserts harms to students and faculty at its institutions,
the State should be allowed—just like any other proprietor of educational
institutions—to raise due process claims on their behalf. See id. at *4 (citing
Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925); Parks Sch. of Bus., Inc. v.
Symington, 51 F.3d 1480, 1487 (9th Cir.1995); Ohio Ass’n of Indep. Schs. v.
Goff, 92 F.3d 419, 422 (6th Cir. 1996)); see also Bd. of Nat. Res. of State of
Wash. v. Brown, 992 F.2d 937, 943 (9th Cir. 1993).18
Finally, for the first time in their reply brief, Defendants argued that
there could be no due process violation in this case because “ ‘notice and an
opportunity to respond’ is not required where, as here, the challenged rule
reflects a categorical judgment.” 9th ECF 70 at 9 (citing Bi-Metallic Inv. Co. v.
State Bd. Of Equalization, 239 U.S. 441, 445 (1915)). But this argument fails
18

Though the panel found it unnecessary to reach this issue, Katzenbach
does not control even as to the States’ parens patriae claims. Katzenbach cited
Mellon in holding that South Carolina could not use its parens authority to
challenge a federal statute. 383 U.S. at 323-24. But in Massachusetts v. EPA,
the Court clarified that “there is a critical difference between allowing a State
to protect her citizens from the operation of federal statutes (which is what
Mellon prohibits) and allowing a State to assert its rights under federal law
(which it has standing to do).” 549 U.S. at 520 n.17. Here, the States seek not
to protect our residents from federal statutes, but to protect our residents
against Defendants’ violations of federal law. This is what States “ha[ve]
standing to do.” Id.

31

for a number of reasons (in addition to being raised too late). First, Supreme
Court precedent makes clear that many of the rights implicated by this Order
are fundamental, including “the right to rejoin [one’s] immediate family,”
Landon, 459 U.S. at 34, the right of longtime residents to temporarily leave and
reenter the country, id., and the right to travel abroad. Kent, 357 U.S. at 125-26.
Such rights cannot be taken away without an individualized proceeding that
“meet[s] the essential standard of fairness under the Due Process Clause.”
Landon, 459 U.S. at 34. Second, to the States’ knowledge, the Bi-Metallic
doctrine has never been applied to an executive order, perhaps because
executive orders include no opportunity for public comment or input, unlike
statutes or administrative rules. Cf. Gallo v. U.S. Dist. Court For Dist. of
Arizona, 349 F.3d 1169, 1181 (9th Cir. 2003) (“When the action is purely
legislative, the statute satisfies due process if the enacting body provides public
notice and open hearings.”). Finally, even if Bi-Metallic did apply to executive
orders, it would not apply here because this order contemplates at least some
measure of individualized assessment via standardless, “case-by-case”
decisions by the Secretaries of State and Homeland Security about whether an
individual should be admitted to this country “when in the national interest.”
Executive Order § 3(g). The Order thus involves at least some degree of

32

individualized assessment that takes its provisions outside the Bi-Metallic
framework. Cf. Harris v. Cty. of Riverside, 904 F.2d 497, 502 (9th Cir. 1990)
(“In determining when the dictates of due process apply . . . we find little
guidance in formalistic distinctions between ‘legislative’ and ‘adjudicatory’ or
‘administrative’ government actions. As the Supreme Court impliedly
recognized in Bi-Metallic, the character of the action, rather than its label,
determines whether those affected by it are entitled to constitutional due
process.”).
In short, the panel correctly concluded that Defendants failed to show
that they are likely to succeed on appeal as to the States’ due process claims.
2.

Defendants failed to show a likelihood of success on the States’
religious discrimination claims

The panel saw no need to finally determine whether Defendants have a
likelihood of success on appeal as to the States’ claims based on the
Establishment and Equal Protection Clauses, “reserv[ing] consideration of
these claims until the merits of this appeal have been fully briefed.”
Washington, 2017 WL 526497, at *10. But the panel expressed strong
skepticism about Defendants’ likelihood of success on appeal as to these
claims, id., and rightly so. Both claims are extremely strong, especially

33

considering that the case is still at the pleading stage and the States have had no
opportunity for discovery.
a.

The States are likely to prevail on the Establishment
Clause claim

The Order violates the Establishment Clause of the First Amendment
because its purpose and effect is to disfavor Muslims. “The clearest command
of the Establishment Clause is that one religious denomination cannot be
officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982).
As the panel explained, “endorsement of a religion ‘sends the ancillary
message to . . . nonadherents that they are outsiders, not full members of the
political community.’” Washington, 2017 WL 526497, at *10 (quoting Santa Fe
Indep. Sch. Dist. v. Doe, 530 U.S. 290, 310 (2000) (citation omitted)).
The Order violates the Establishment Clause by creating a religious
preference, and is thus subject to strict scrutiny. See Larson, 456 U.S. at 24647. In Larson, the law at issue did not mention any religious denomination by
name, but drew a distinction between religious groups based on the percentage
of their revenue received from non-members, which had the effect of harming
certain religious groups. Id. at 231-32. Because the law was focused on
religious entities and had the effect of distinguishing between them in a way
that favored some, the Court applied strict scrutiny. Id. at 246-47.

34

Similarly here, Section 5(b) of the Executive Order grants priority to
“refugee claims made by individuals on the basis of religious-based
persecution,” but only if “the religion of the individual is a minority religion in
the individual’s country of nationality.” There is overwhelming evidence that
the purpose of this provision is to tilt the scales in favor of Christian refugees at
the expense of Muslims. WD ECF 18, ¶ 53, Ex. 8. For example, during an
interview with the Christian Broadcasting Network, President Trump
confirmed that persecuted Christians were “a priority.” WD ECF 18-8. He
explained:
They’ve [Christians] been horribly treated. Do you know if you
were a Christian in Syria it was impossible, at least very tough to
get into the United States? If you were a Muslim you could come
in, but if you were a Christian, it was almost impossible and the
reason that was so unfair, everybody was persecuted in all
fairness, but they were chopping off the heads of everybody but
more so the Christians. And I thought it was very, very unfair. So
we are going to help them.
WD ECF 18-8. While Defendants have argued that the President’s intent
cannot be considered, the panel correctly rejected that argument, recognizing
that “evidence of purpose beyond the face of the challenged law may be
considered in evaluating Establishment and Equal Protection Clause claims.”
Washington, 2017 WL 526497, at *10 (citing Church of the Lukimi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (explaining that action

35

targeting religion “cannot be shielded by mere compliance with the
requirement of facial neutrality”)); see also, e.g., Kerry v. Din, 135 S. Ct. 2128,
2141 (2015) (Kennedy, J., concurring in the judgment) (holding that courts
may “look behind” stated motives where “an affirmative showing of bad faith”
is “plausibly alleged with sufficient particularity”); INS v. Pangilinan, 486 U.S.
875, 886 (1988) (looking to the “historical record” to determine whether
actions were “motivated by any racial animus”). The Court thus has the
authority and duty to test the Executive’s intent for compliance with the law.
The bottom line is that the Executive Order fails the Larson test.
Affording preferred status to individuals of certain faiths is “precisely the sort
of official denominational preference that the Framers of the First Amendment
forbade.” Pangilinan, 456 U.S. at 255.
Moreover, even if the Order did not distinguish between denominations,
it would violate the Establishment Clause because it fails the “Lemon test.”
Lemon v. Kurtzman, 403 U.S. 602 (1971). The Lemon test requires that a
government action (1) have a secular legislative purpose; (2) not have the
principal or primary effect of advancing or inhibiting religion; and (3) not
foster excessive government entanglement with religion. I d . at 612-13.
Defendants must satisfy all three prongs, but here they satisfy none.

36

First, the Order’s purpose is not “secular” because President Trump’s
purpose in issuing this Order—as confirmed by his own public statements—is
to “endorse or disapprove of religion.” Wallace v. Jaffree, 472 U.S. 38, 56, 7576 (1985). The secular purpose must be “genuine, not a sham, and not merely
secondary to a religious objective.” McCreary Cty., Ky. v. Am. Civil Liberties
Union of Ky., 545 U.S. 844, 864-65 (2005). In determining intent, the Supreme
Court has refused to ignore prior statements of decision makers. Id. at 866.
“[T]he world is not made brand new every morning,” and the courts will not
“ ‘turn a blind eye to the context in which [a] policy arose.’ ” Id. at 866 (quoting
Santa Fe, 530 U.S. at 315). As the Supreme Court has explained, this inquiry
into purpose at times requires invalidation of an action that otherwise would
have been constitutional: “One consequence of taking account of the purpose
underlying past actions is that the same government action may be
constitutional if taken in the first instance and unconstitutional if it has a
sectarian heritage.” Id. at 866 n.14. Given the evidence that President Trump’s
actual purpose in issuing this Order is to “endorse or disapprove of religion,”
the Order violates the first prong of the Lemon test. Wallace, 472 U.S. at 56.
The Order also violates Lemon’s second prong, which requires that the
“principal or primary effect . . . be one that neither advances nor inhibits

37

religion[.]” Lemon, 403 U.S. at 612. Governmental action violates this prong
“if it is sufficiently likely to be perceived by adherents of the controlling
denominations as an endorsement, and by the nonadherents as a disapproval, of
their individual religious choices.” Vasquez v. Los Angeles Cty., 487 F.3d
1246, 1256 (9th Cir. 2007) (internalquotation marks omitted). The court
analyzes this prong “from the point of view of a reasonable observer who is
‘informed . . . [and] familiar with the history of the government practice at
issue.’ ” Id. (alterations in original) (quoting Brown v. Woodland Joint Unified
Sch. Dist., 27 F.3d 1373, 1378 (9th Cir. 1994)). Thus, the question here is
whether an informed, reasonable observer would perceive this Order as an
endorsement of one religion, as disapproval of another, or both. In light of the
evidence cited above, there is little question that the answer to this question is
yes.
As to the third prong, the Executive Order “foster[s] ‘an excessive
governmental entanglement with religion’” by favoring one religious group
over another, which “ ‘engender[s] a risk of politicizing religion.’ ” Larson, 456
U.S. at 252, 253 (quoting Walz, 397 U.S. at 674, 695). Selectively burdening
Muslims and favoring Christians creates improper “entanglement with

38

religion.” Id. at 252 (quoting Walz, 397 U.S. at 674). The Executive Order fails
every prong of the Lemon test and violates the Establishment Clause.
b.

The States are likely to prevail on the Equal Protection
claim

The Executive Order also violates the Equal Protection Clause, which
prohibits the government from impermissibly discriminating among persons
based on religion or national origin. De La Cruz v. Tormey, 582 F.2d 45, 50
(9th Cir. 1978). Significantly, the States need not show that intent to
discriminate “was the sole purpose of the challenged action, but only that it
was a ‘motivating factor.’ ” Acre v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015)
(quoting Vill. Of Arlington Heights v. Metro. Hous. Dev. Corp, 429 U.S. 252,
265-66 (1977)).
Classifications based on religion are inherently suspect and subject to
strict scrutiny. Graham v. Richardson, 403 U.S. 365, 372 (1971); City of New
Orleans v. Dukes, 427 U.S. 297, 303 (1976). Such laws must be narrowly
tailored to serve a compelling governmental interest. Ball v. Massanari, 254
F.3d 817, 823 (9th Cir. 2001). Here, the Executive Order creates classifications
based on religion and national origin. By its terms, the Executive Order singles
out people from seven countries for a blanket ban on entry to the United States.
Sec. 3(c). This ban applies to lawful permanent residents, visa holders, asylees,

39

and refugees from the seven countries who live in the United States. The
Executive Order also expressly states that Defendants will give priority in
future refugee claims “on the basis of religious-based persecution,” but only if
“the religion of the individual is a minority religion in the individual’s country
of nationality.” Sec. 5(b).
The President’s decision to adopt suspect classifications in violation of
federal law demands strict scrutiny—a test that this Executive Order cannot
remotely withstand. Neither the temporary ban on entry of all non-citizens
from certain countries nor the barring of all refugees is narrowly tailored to
further a compelling government interest. On the contrary, the Executive Order
is profoundly overbroad. Although it purports to aim to prevent terrorism, it
sweeps within its ambit infants, children, people with disabilities, victims of
terrorism, those who served alongside the United States Armed Forces in Iraq,
visaholders who have passed a rigorous screening process, and many others
who the government has no reason to suspect of terrorism. Defendants cannot
establish that this blanket ban—rather than less extreme measures—is
warranted. This is particularly so given that Defendants have not shown that
the current vetting procedures are inadequate and have not identified a basis for
believing that there is a particularized threat warranting such severe actions.

40

See 9th ECF 28, Ex. A ¶¶ 3-4) (Decl. Nat’l Security Advisors) (concluding that
there is no national security purpose for a total bar on entry from the seven
countries).
At the same time, the Executive Order is under-inclusive with respect to
its stated goal. Although it cites the attacks of September 11, 2001, as a
rationale, it imposes no restrictions on travelers from the countries whose
nationals carried out those attacks (Egypt, Lebanon, Saudi Arabia, and the
United Arab Emirates). WD ECF 4 ¶ 8, Ex. B. In reality, as nearly a dozen
national security and intelligence officials emphatically declared—the
Executive Order “ultimately undermines the national security of the United
States, rather than making us safer.” 9th ECF 28, Ex. A (Decl. Nat’l Security
Advisors ¶ 3).
Because the Executive Order is both radically overbroad and underinclusive, it cannot withstand any level of review, let alone strict scrutiny. The
Executive Order’s “sheer breadth is so discontinuous with the reasons offered
for it that the [Executive Order] seems inexplicable by anything but animus
toward the class it affects; it lacks a rational relationship to legitimate state
interests.” Romer v. Evans, 517 U.S. 620, 632 (1996). And the inference of
animus created by the over- and under-inclusiveness of the Order is here

41

confirmed by substantial direct evidence that the Executive Order was
prompted by animus towards Muslims, as the panel recognized. Washington,
2017 WL 526497, at *10. In short, the Order “is at once too narrow and too
broad,” and shows hints of its true purpose. Romer v. Evans, 517 U.S. at 633;
see also United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (“The
Constitution’s guarantee of equality must at the very least mean that bare
[legislative] desire to harm a politically unpopular group cannot justify
disparate treatment of that group.”).
Finally, the fact that the seven countries targeted by the Executive Order
are the same seven countries that Congress and the Executive Branch identified
in restricting the visa-waiver program in 2015 and 2016 does not mean that this
Executive Order passes constitutional muster. Requiring travelers (of any
nationality) who were present in the seven countries after a given date to get a
visa is a far cry from a blanket ban on all travelers from these countries.
Further, the fact that these seven countries may once have been selected for a
legitimate purpose does not prove that they were chosen here with no improper
motive. See McCreary, 545 U.S. at 864.
In short, the Executive Order violates the equal protection clause. It is
motivated by discriminatory animus and cannot survive any level of review.

42

3.

Defendants failed to show a likelihood of success on the States’
statutory claim

Although the panel did not reach this claim, Defendants have also failed
to show a likelihood of success on appeal with respect to the States’ statutory
claim. The Order’s nationality-based classifications violate the Immigration
and Naturalization Act (INA).
Defendants’ assertion of limitless power to issue this Order is based in
large part on 8 U.S.C. § 1182(f), which delegates to the President authority to
“suspend the entry of all aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of aliens any restrictions he may deem
to be appropriate.” Section 1182 was enacted at the height of the McCarthyRed Scare era, as part of the Immigration and Nationality Act of 1952. Pub. L.
82-414.
Any argument that section 1182(f) allows discrimination ended thirteen
years later with the passage of the Immigration and Nationality Act of 1965.
Pub. L. No. 89-236 (Oct. 3, 1965). Enacted on the heels of the Civil Rights Act
and the Voting Rights Act of 1965, the Immigration and Nationality Act of
1965 profoundly changed the law by abolishing the national origin quota
system, establishing a uniform quota system, and prohibiting discrimination on
the basis of race and national origin in issuing visas. Olsen v. Albright, 990 F.

43

Supp. 31, 37 (D.D.C. 1997) (citing Pub. L. No. 89-236). The legislative history
of the 1965 INA amendments “is replete with the bold anti-discriminatory
principles of the Civil Rights Era.” Id. at 37.
The 1965 INA amendments state that: “no person shall receive any
preference or priority or be discriminated against in the issuance of an
immigrant visa because of the person’s race, sex, nationality, place of birth, or
place of residence.” 8 U.S.C. § 1152(a)(1)(A). “Congress could hardly have
chosen more explicit language.” Legal Assistance for Vietnamese Asylum
Seekers v. Dep’t of State, Bureau of Consular Affairs, 45 F.3d 469, 473 (D.C.
Cir. 1995), vacated on other grounds, 519 U.S. 1 (1996). Moreover, the statute
lists three specific circumstances under which nationality can be considered,
none of which apply here, making clear that Congress intended to prohibit
other preferences or discrimination based on nationality. 8 U.S.C.
§1152(a)(1)(A); see, e.g., Setser v. United States, 556 U.S. 231, 237-39 (2012)
(applying the doctrine of expressio unius est exclusio alterius).
Section 3(c) of the Executive Order directly violates 8 U.S.C.
§ 1152(a)(1)(A) by discriminating on the basis of nationality, forbidding entry
by aliens from seven countries. See Dep’t of Homeland Security, Fact Sheet:
Protecting The Nation From Foreign Terrorist Entry To The United States

44

(Jan.

29,

2017),

https://www.dhs.gov/news/2017/01/29/protecting-nation-

foreign-terrorist-entry-united-states (identifying the nationalities impacted by
section 3(c) of the Executive Order).
Defendants offer two primary counterarguments. Both fail.
First, Defendants argue that other presidents have issued orders
excluding immigrants based in part on nationality. But each was substantially
narrower than the order here and focused more tightly on culpable conduct in
or by the targeted nation. See Congressional Research Service, Executive Auth.
to Exclude Aliens: In Brief (Jan. 23, 2017), https://fas.org/sgp/crs/homesec/
R44743.pdf. For example, President Clinton barred the entry of members of the
military junta in Sierra Leone, and President George W. Bush barred foreign
government officials responsible for a failure to combat human trafficking. Id.
Each action was taken in response to a discrete national security or policy
concern. No president in the modern era has issued this type of blanket ban on
travelers from multiple countries in blatant violation of 8 U.S.C. § 1152.
Permitting this conduct to stand would return the nation to a shameful period in
our history when distinctions based on national origin were permitted. Cf. Chae
Chan Ping v. U.S., 130 U.S. 581, 595, 606 (1889) (sustaining the Chinese
Exclusion Act because the Chinese “remained strangers in the land”).

45

Second, Defendants argue that 8 U.S.C. § 1152(a)(1)(A) governs only
the issuance of visas, while § 1182(f) governs the separate authority to regulate
“admission” to the United States. But the Order says that visas of those from
the seven countries are “blocked,”19 and Defendants had in fact revoked a large
number of visas before the district court enjoined them from doing so.20 In any
event, even if the Order dealt only with admission and not visas, Defendants’
argument would mean that although Congress ordered the President not to
discriminate in issuing visas, Congress intended to leave him completely free
to decide based on nationality who can actually use their visas to come to the
country. That makes no sense. See, e.g., Gila River Indian Cmty. v. United
States, 729 F.3d 1139, 1145 (9th Cir. 2013) (noting that in construing a statute,
courts must attempt to “fit, if possible, all parts into a harmonious whole”); see
also 9th ECT 65-2 (Brief of Amici Curiae National Immigrant Justice Center
and ASISTA).
In sum, Defendants’ inability to show a likelihood of success on the
States’ INA claim provides added support for the panel’s denial of a stay.

19

See Sec. 3(g) (providing that “nationals of countries for which visas
and other benefits are otherwise blocked” may obtain entry “on a case-by-case
basis”) (emphasis added).
20
See infra n.7.

46

F.

The Panel Correctly Concluded that Defendants Failed to Show
That They Would Suffer Irreparable Injury Absent a Stay
The panel correctly concluded that Defendants failed to show that a stay

is necessary to avoid irreparable injury. Washington, 2017 WL 526497, at *10.
Defendants failed to present any evidence whatsoever that national security
concerns justified the Order, and as a result, they failed to show that a return to
the status quo would result in any harm. These failures are fatal to their claim.
Defendants argued that a stay was necessary for the security of the
nation. 9th ECF 14 at 24. But as the panel recognized, Defendants did not offer
a shred of evidence that the Order furthered that objective. Defendants
submitted no evidence explaining the need for the Order in either their briefing
before the district court or their briefing before this Court. Nor did Defendants
offer any record evidence in support of the Order when pressed to do so by the
panel during oral argument. See Oral Argument at 7:10-12:15; 1:05:141:05:46,

http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=00000

10885. In fact, the only evidence in the record on the issue of national security
is a declaration from nearly a dozen high ranking national security officials that
the Executive Order “cannot be justified on national security or foreign policy
grounds” and “ultimately undermines the national security of the United
States[,]” which Defendants did not challenge. 9th ECF 28-1, Ex. A ¶ 3.

47

Accordingly, as the panel correctly noted, although Defendants’ interest in
combating terrorism “is an urgent objective of the highest order,” Holder v.
Humanitarian Law Project, 561 U.S. 1, 28 (2010), Defendants have “done
little more than reiterate that fact.” Washington, 2017 WL 526497, at *10.
In light of the complete lack of evidence and argument explaining the
urgent need for the Executive Order, Defendants have also failed to show that
they would suffer irreparable injury absent a stay. They assert that the district
court’s order imposes irreparable harm because it constitutes “[j]udicial
second-guessing” and intrudes on separation of powers. 9th ECF 14 at 25. But
the panel properly rejected these arguments, because there is no precedent to
support Defendants’ claim of unreviewability and because any separation of
powers injury can be vindicated in the full course of the litigation. Washington,
2017 WL 526497, at *11. See also, e.g., Lopez v. Hecker, 713 F.2d 1432, 1434
(9th Cir. 1983) (declining to stay district court order “restrain[ing]” the
Secretary of Health and Human Services from implementing an announced
policy where “separation of powers” was at issue).
Moreover, as the panel correctly noted, the district court’s order “merely
returned the nation temporarily to the position it has occupied for many
previous years.” Washington, 2017 WL 526497, at *10. Without anything in the

48

record to suggest that this poses any risk to national security, Defendants
cannot show that a return to the status quo would cause an irreparable injury.
On the contrary, as discussed next, it is the States and their residents that would
suffer irreparable injury if this Court granted Defendants’ request for a stay.
G.

The Panel Correctly Concluded that the Balance of Hardships and
Public Interest Tip in the States’ Favor
As the panel correctly recognized, 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. Washington, 2017 WL
526497, at *11.
The Executive Order had immediate and far-reaching effects within the
States of Washington and Minnesota. It separated families, stranded university

students and faculty members abroad, stripped State residents of personal
freedoms, and harmed the States’ businesses and education institutions. As
the panel correctly determined, these “are substantial injuries and even
irreparable harms.” Washington, 2017 WL 526497, at *11 (citing 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))).

49

Defendants claim that national security requires these harms. But this
Court need not and should not allow constitutional violations merely based
on Defendant’s unsupported invocation of national security concerns. See
9th ECF 28, Ex. A, ¶ 4; Hassan v. City of New York, 804 F.3d 277, 306-07
(3d Cir. 2015) (“[I]t is often where the asserted interest appears most
compelling that we must be most vigilant in protecting constitutional
rights.”).
Defendants also claim that the Executive Order’s discretionary waiver
provisions are a sufficient protection for those who would suffer
unnecessarily. But the panel recognized the many problems with this
argument and properly rejected it as unworkable and unpredictable. See
Washington, 2017 WL 526497, at *11 (“[Defendants have] 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?”).
In addition, the panel also correctly recognized that there are
compelling public interests in favor of the States. Although the panel found
public interests on both sides, it acknowledged that the public “has an

50

interest in free flow of travel, in avoiding separation of families, and in
freedom from discrimination.” Washington, 2017 WL 526497, at *11. And as
this Court has repeatedly made clear, “ ‘it is always in the public interest to
prevent the violation of a party’s constitutional rights.’ ” Melendres, 695
F.3d at 1003 (internal quotation marks omitted) (quoting Sammartano v.
First Judicial District Court, 303 F.3d 959 (9th Cir. 2002)).
In short, when balancing the hardships and weighing the States’
important public interests against Defendants’ bare assertions of national
security concerns, it is clear that the balance of equities and public interest
tip sharply in favor of the States. The panel properly concluded that a stay
was not justified.
H.

The Panel Properly Declined to Narrow the Injunction
The panel also properly rejected Defendants’ argument that the district

court order is “overbroad” because (1) it is not limited to lawful permanent
residents and previously admitted aliens who are temporarily abroad; and (2) it
applies nationwide. Washington, 2017 WL 526497, at *9. Neither argument
provides a basis for narrowing the preliminary injunction.
First, as the panel explained, limiting the injunction to lawful permanent
residents and previously admitted aliens who are temporarily abroad would

51

leave citizens without relief as they wait for spouses and family members to
return home, and loved ones to visit. Id. (citing Din, 135 S. Ct. at 2139, 2142
(six Justices declining to adopt a rule categorically barring citizens from
asserting a liberty interest in an alien spouse’s receipt of a visa). It would also
exclude undocumented residents of the States, who possess due process rights.
Washington, 2017 WL 526497, at *9 (citing Zadvydas, 533 U.S. at 693). As the
panel cautioned, “[t]here 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.” Washington, 2017 WL 526497, at *9. If Defendants’
believe the Executive Order should be limited, they are always free to
withdraw and narrow the executive order themselves.21
Second, the panel properly held that the national reach of the TRO is
appropriate. Id. The Fifth Circuit has held that the immigration laws must be
21

Furthermore, though the panel saw no need to reach this issue,
narrowing the injunction would not remedy the Establishment Clause harms
that the Order is causing to the States and all of our residents. Establishment
Clause violations are irreparable harms, and the Clause was designed in part to
protect states from the federal government establishing a national religion. See,
e.g., Chaplaincy of Full Gospel Churches v. England, 454 F.3d 290, 303 (D.C.
Cir. 2006) (an Establishment Clause violation “is sufficient, without more, to
satisfy the irreparable harm prong”); Parents’ Ass’n of P.S. 16 v. Quinones,
803 F.2d 1235, 1242 (2d Cir. 1986) (same); Separation of Church & State
Comm. v. City of Eugene, 93 F.3d 617, 621 (9th Cir. 1996) (O’Scannlain, J.,
concurring) (“[C]oncerns about federalism . . . motivated ratification of the
Establishment Clause.”)

52

uniform and cannot be confined to particular states. Texas v. United States, 809
F.3d 134, 187-88 (5th Cir. 2015) (citing Arizona v. United States, 132 S. Ct.
2492, 2502 (2012). Even if a patchwork application of immigration laws were
permitted, the panel correctly noted Defendants’ failure to propose an
alternative to the TRO that “accounts for the nation’s multiple ports of entry
and interconnected transit system.” Washington, 2017 WL 526497, at *9.
IV.

CONCLUSION

There is no basis for en banc review here. The motions panel properly
denied Defendants’ motion for stay in an opinion that carefully applied
precedent and creates no conflict. The Court should deny en banc

53

reconsideration and allow the merits of the preliminary injunction appeal to
proceed.
RESPECTFULLY SUBMITTED this 16th day of February 2017.
ROBERT W. FERGUSON, WSBA 26004
Attorney General of Washington
s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492
Solicitor General
ANNE E. EGELER, WSBA 20258
Deputy Solicitor General
COLLEEN M. MELODY, WSBA 42275
Civil Rights Unit Chief
MARSHA CHIEN WSBA 47020
PATRICIO A. MARQUEZ WSBA 47693
Assistant Attorneys General
Office of the Attorney General
800 Fifth Avenue, Suite 2000
Seattle, WA 98104
[phone]
LORI SWANSON
Attorney General of Minnesota
ALAN I. GILBERT, MN #0034678
Solicitor General
JACOB CAMPION, MN #0391274
Assistant Attorney General
Office of the Attorney General
445 Minnesota Street, Suite 1100
St. Paul, MN 55101
[phone]

54

STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 28-2.6(c) the Appellees state that there are no
related cases.

55

CERTIFICATE OF COMPLIANCE (FRAP 32(a)(7))
I certify that pursuant to Fed. R. App. P. 27, the attached States’ Brief
Regarding Rehearing En Banc is proportionately spaced, has a typeface of 14
points or more and contains 11,641 words.

February 16, 2017

s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492

56

CERTIFICATE OF SERVICE
I hereby certify that on February 16, 2017, I electronically filed the
foregoing with the Clerk of the Court of the United States Court of Appeals for
the Ninth Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

February 16, 2017

s/ Noah G. Purcell
NOAH G. PURCELL, WSBA 43492

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