State of Hawaii v. Trump

Filing 304

Declaration re #303 Reply, Supplemental Declaration of Neal K. Katyal. (Attachments: #1 Exhibit F, #2 Exhibit G, #3 Exhibit H, #4 Exhibit I, #5 Certificate of Service)(Katyal, Neal)

No. 16A1191
________________________________________________________________
________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES
_______________

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
APPLICANTS
v.
STATE OF HAWAII, ET AL.
_______________

REPLY IN SUPPORT OF APPLICATION FOR STAY PENDING APPEAL AND
PENDING DISPOSITION OF PETITION FOR A WRIT OF CERTIORARI
_______________

JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
[e-mail]
[phone]

________________________________________________________________
________________________________________________________________

EXHIBIT H

IN THE SUPREME COURT OF THE UNITED STATES
_______________

No. 16A1191
DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
APPLICANTS
v.
STATE OF HAWAII, ET AL.
_______________

REPLY IN SUPPORT OF APPLICATION FOR STAY PENDING APPEAL AND
PENDING DISPOSITION OF PETITION FOR A WRIT OF CERTIORARI
_______________
To summarize where this case stands:

respondents brought an

unripe challenge before a single alien abroad had been denied a
visa, an act that is itself generally unreviewable.

Respondents

then obtained a global injunction, including against portions and
applications of Executive Order 13,780, 82 Fed. Reg. 13,209 (Mar.
9, 2017) (Order), that do not even arguably affect them.

The

injunction now rests on a statutory argument that respondents did
not raise below and that the Fourth Circuit declined to adopt in
ruling on constitutional grounds.
narrowed

the

injunction,

and

the

And because the Ninth Circuit
President

is

proceeding

to

implement those provisions of the Order that are no longer enjoined
while seeking this stay, respondents claim that it is somehow the
President’s action -- rather than the injunction in their own

2
case -- that has undermined the Order.

None of respondents’

arguments adheres to usual legal rules; each is tailor-made for
this Order alone.

This Court should stay this injunction, grant

certiorari here and in Trump v. IRAP, No. 16-1436, and expedite
its consideration of these important cases.
I.

THERE IS A REASONABLE PROBABILITY THAT THIS COURT WILL GRANT
CERTIORARI
This case warrants review.

conceded

“the

fundamental

issues.”

Opp. 11.

Indeed, respondents previously

importance

of

the

underlying

legal

And respondents no longer press their earlier

claim that certiorari is unnecessary because, although certain
provisions of the Order have been enjoined, the government has
taken other steps to improve national security.
Gov’t Supp. Br. 29.

See Opp. 11-12;

Of respondents’ remaining arguments against

certiorari (Supp. Br. 35-40), none bears even minimal scrutiny.
A.

Respondents contend (Supp. Br. 36-37) that the Ninth

Circuit’s decision diminishes the need for review.

But the Ninth

Circuit upheld broader injunctive relief than the Fourth Circuit
in IRAP, and it did so based on a novel reading of 8 U.S.C. 1182(f)
that respondents themselves never urged and that only two judges
of the Fourth Circuit endorsed.

See IRAP v. Trump, 857 F.3d 554,

608-611 (2017) (en banc) (Keenan, J., joined by Thacker, J.,
concurring in part and concurring in the judgment).
the

en

banc

Fourth

Circuit

necessarily

found

A majority of

that

statutory

argument insufficient to avoid the constitutional issue.

Id. at

3
580-581.

Although

respondents

are

correct

that

13

federal

appellate judges have voted to invalidate the Order (Supp. Br. 6),
eight appellate judges have voted to uphold it or the Order it
replaced, and they at least agree on the governing rationale.1
In any event, the fact that the decision below nullifies a
national-security

directive

of

the

President

regardless of whether the circuits are divided.

warrants

review

This Court has

granted review on important questions of immigration law in the
absence of any square, developed conflict.

See United States v.

Texas, 136 S. Ct. 2271 (2016) (per curiam); Arizona v. United
States, 567 U.S. 387 (2012).
B.

It should do the same here.2

Respondents reprise (Supp. Br. 37-39) their contention

that the government’s litigation conduct undercuts the need for
review, but it gains no force through repetition.

Gov’t Supp. Br.

28-29. At every stage, the government has moved quickly and sought
a stay.

Respondents suggest (Supp. Br. 37) the government could

have saved time by stipulating to conversion of the temporary
restraining order (TRO) to a preliminary injunction.

But as the

Ninth Circuit has now recognized, the TRO’s scope would have

1

See generally, e.g., IRAP, 857 F.3d at 639 (Niemeyer, J.,
joined by Shedd and Agee, JJ., dissenting); Amended Order,
Washington v. Trump, No. 17-35105 (9th Cir. Mar. 17, 2017)
(Kozinski, J., joined by Bybee, Callahan, Bea, and Ikuta, JJ.,
dissenting from denial of reconsideration en banc).
2

Respondents wrongly suggest (Supp. Br. 36) that the
procedural posture here weighs against review. Texas and Arizona
also involved preliminary injunctions, and the decision below
rests squarely on the court’s assessment of the merits.

4
restrained even provisions addressing internal government reviews
of vetting procedures.

Supp. Add. 70-72.

It was thus essential

for the government to seek to narrow the scope of injunctive relief
in the district court so that those reviews could proceed.
Respondents also fault the government (Supp. Br. 38) for not
short-circuiting the lower courts’ review by seeking immediate
relief from this Court.

They claim, however, that even now this

Court’s review is premature.

See p. 3 n.2, supra.

In any event,

the government moved to (and did) expedite proceedings in the court
of appeals, but in a manner that allowed that court to consider
its stay request after full briefing in the hope that relief from
this Court would not be necessary -- and to ensure that, if it
were, this Court would have the benefit of the Ninth Circuit’s
considered ruling.

The government has moved this case through the

courts with urgency and care at every stage.
C.

Respondents’ primary argument against review (Supp. Br.

1, 7, 35-36) rests on the President’s June 14, 2017, memorandum
(Memorandum) clarifying that the Order’s enjoined provisions will
take effect as soon as the injunctions here and in IRAP are stayed
or lifted.

That Memorandum should not have been necessary, but

the IRAP respondents argued to this Court (as a reason why the
government’s certiorari petition and stay application were moot)
that Section 2(c)’s 90-day suspension was set to expire last week,
notwithstanding the injunctions here and in IRAP.
13, IRAP, No. 16-1436 (June 12, 2017).

Br. in Opp. at

The President’s Memorandum

5
confirms what the Order’s text and common sense indicate:

a stay

of these injunctions will provide meaningful relief, by allowing
the entry and refugee suspensions to operate in tandem with the
parallel reviews, just as the Order envisions.
Respondents

here

and

in

IRAP,

however,

claim

that

the

President is the one who severed the link between the entry and
refugee
programs.

suspensions

and

the

accompanying

reviews

of

those

Resps. Supp. Br. 1; Resps. Supp. Br. at 1, 4, IRAP, No.

16-1436 (June 20, 2017).

That is simply wrong.

It is the

injunctions in these cases -- not any actions of the President -that are preventing the Order’s various provisions from operating
together.

If this Court stays those injunctions, the Order will

function precisely as the President intended:

the entry and

refugee suspensions will take effect during approximately the same
period as the reviews, which will free resources to perform those
reviews and promote national security by limiting the entry of
certain foreign nationals while those reviews are ongoing.
Respondents do not press (Supp. Br. 35) the argument advanced
by

the

IRAP

respondents

in

their

supplemental

brief

filed

yesterday -- namely, that the President’s ability to take different
or additional measures after the reviews are completed means the
90-

and

events.

120-day

suspensions

will

eventually

be

overtaken

by

The question is whether, in the meantime, the President

should be able to implement all of the Order’s provisions as an
integrated whole.

And the answer to that question should turn on

6
whether the government has met this Court’s well-established stay
standard -- not on whether the temporary suspensions, which are
important now, will pass in time.

The IRAP respondents’ approach

would mean that this Court could not stay (and then review) any
injunction against a temporary measure of short duration.

See

Gov’t Stay Reply at 13, Trump v. IRAP, No. 16A1190 (June 14,
2017).

Neither the IRAP respondents, nor respondents here, offer

any response to these points.
II.

THERE IS A FAIR PROSPECT THAT THIS COURT WILL SET ASIDE THE
DECISION BELOW
Respondents devote the bulk of their submission (Supp. Br.

8-31) to defending the court of appeals’ decision on the merits.
Respondents’ defense is unpersuasive.
A.

Respondents’ Statutory Claims Are Not Justiciable

Respondents’ statutory claims face two threshold difficulties
that they barely address.

First, respondents do not dispute that

aliens abroad generally lack any rights regarding entry, and as a
result the denial of entry or a visa to such aliens is ordinarily
not subject to judicial review.

Gov’t Supp. Br. 7-8.

Respondents

do not even discuss (Supp. Br. 8-10) the doctrine of consular
nonreviewability.

Although this Court has twice permitted limited

review where U.S. citizens plausibly alleged that the refusal of
a visa to an alien abroad violated the citizens’ own constitutional
rights, see Kerry v. Din, 135 S. Ct. 2128 (2015); Kleindienst v.

7
Mandel, 408 U.S. 753 (1972), respondents cite no decision of this
Court extending such review to statutory claims.3
Second, the only basis for judicial review would be the
Administrative Procedure Act, 5 U.S.C. 704.

Even assuming that

review is not precluded for the reasons given above, see 5 U.S.C.
701(a), here there is no “final agency action” for a court to
review: no alien abroad has been denied a visa pursuant to Section
2(c).

Respondents do not dispute that the Order contains a

detailed waiver provision, that one of the grounds for a waiver is
reuniting with close family members in the United States, and that
Dr. Elshikh’s mother-in-law may seek a waiver on that basis. Gov’t
Supp. Br. 9-10.

Likewise, none of the students Hawaii wants to

enroll has been denied a visa or waiver.
respondents do not have a ripe claim.

For similar reasons,
See Lujan v. National

Wildlife Fed’n, 497 U.S. 871, 891-892 (1990).

The Court could

reverse the injunction on that ground alone without resolving any
other issue in this case.

After all, in both Mandel and Din, the

Court did not consider the constitutional claims at issue until
after the visa (and in Mandel, a waiver) had been denied to the
alien abroad.

3

There is no reason for a different result here.

In Sale v. Haitian Centers Council, Inc., 509 U.S. 155
(1993), this Court did not address reviewability. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 91 (1998) (“[D]riveby jurisdictional rulings * * * have no precedential effect.”).

8
B.

Respondents’ Statutory Claims Are Meritless
1.

a.
adopted

The Order is consistent with 8 U.S.C. 1182(f)

Respondents
a

position

do
they

not

dispute

never

urged

that
and

the
no

Ninth

other

Circuit

court

has

embraced: the Order violates Section 1182(f) because the President
failed to make a sufficient finding that the entry of aliens from
the six countries and refugees would be detrimental to the national
interest. But as this Court reiterated only days ago, “[n]ationalsecurity policy is the prerogative of the Congress and President,”
and “[j]udicial inquiry into the national-security realm raises
concerns for the separation of powers in trenching on matters
committed to the other branches.”

Ziglar v. Abbasi, No. 15-1358

(June 19, 2017), slip op. 19 (citation and internal quotation marks
omitted).

Courts thus accord “deference to what the Executive

Branch has determined is essential to national security.”

Ibid.

(ellipsis, citation, and internal quotation marks omitted).
Section 1182(f) calls for even greater deference to the
Executive because it confirms the President’s discretion at every
turn:

the statute reserves to the President (1) whether and when

to suspend entry by proclamation (“[w]henever he finds that the
entry” of aliens “would be detrimental” to the national interest);
(2) whose entry to suspend (“all aliens or any class of aliens,”
whether as “immigrants or nonimmigrants”); (3) for how long (“for
such period as he shall deem necessary”); (4) and on what terms
(“he may

* * *

impose on the entry of aliens any restrictions he

9
may deem to be appropriate”).

8 U.S.C. 1182(f).

Respondents have

no answer for the statutory text, or for the wide latitude that
the Executive has historically been afforded in making nationalinterest determinations.

See Gov’t Supp. Br. 15 & n.3.

Respondents argue (Supp. Br. 25) that the President must
“actually find” that entry of aliens would be detrimental.
the President did make such a finding.
1(h), 2(c), and 6(b).

But

See Order §§ 1(b)(iii),

The question here is not whether the

President failed to make a finding, but whether the President may
rest that finding on a risk assessment regarding the inability or
unwillingness of certain foreign governments to provide reliable
information about their nationals -- and whether courts are free
to second-guess the adequacy of the President’s national-interest
determination.

Respondents

offer

nothing

that

would

support

limiting the grounds on which the President may invoke Section
1182(f), or that would require a reviewing court to agree in its
own independent judgment with the President’s risk assessment.
See Webster v. Doe, 486 U.S. 592, 600 (1988).
Respondents

dismiss

(Supp.

Br.

10)

Doe,

Franklin

v.

Massachusetts, 505 U.S. 788 (1992), and Dalton v. Specter, 511 U.S.
462 (1994), because those cases contemplated review in certain
circumstances of claims that an Executive official exceeded his
authority.

But those decisions do not support the proposition

that a court may review the President’s decision on matters the
statute commits to his discretion, see Dalton, 511 U.S. at 474-476,

10
which Section 1182(f) does.

Respondents rely on Mach Mining, LLC

v. EEOC, 135 S. Ct. 1645 (2015), but that case -- which involved
agency conciliation procedures in employment-discrimination cases
-- does not remotely support the Ninth Circuit’s invasive review
of the President’s national-security judgments.
At bottom, respondents resort (Supp. Br. 18-20) to attacking
a straw man:

that reversing the decision below would mean a

“practically limitless immigration power.”
Court

has

authority:

held,

Section

1182(f)

grants

To be sure, as this
the

President

broad

it “clear[ly]” authorizes a naval blockade directed

against aliens from an entire nation.

Sale v. Haitian Centers

Council, Inc., 509 U.S. 155, 187 (1993).

Respondents offer no

difference in principle between that and the entry and refugee
suspensions at issue here.

But from the fact that the President

may place 90- and 120-day pauses on entry by certain foreign
nationals and refugees, it does not follow that the President’s
powers are boundless.
the

President

has

As explained below, see pp. 12-15, infra,

not

sought

to

override

other

immigration

provisions (once those provisions are properly understood), and
the Order is entirely constitutional under Mandel and Din.
b.
findings

In any event, respondents fail to impugn the Order’s
under

any

standard.

Aside

from

passing,

cursory

references (Supp. Br. 23, 26), they make no effort to undermine
the findings in the Order that support Section 6(a)’s refugee
suspension or Section 6(b)’s lowering of the refugee cap.

There

11
is no basis for the injunction against those provisions.

The same

is true of Section 2(c)’s entry suspension, which rests on two
related national-security risks that the Order identifies:
six

countries’

sponsorship

or

sheltering

of

terrorism

the
both

“diminishes [their] willingness or ability to share or validate
important information about individuals seeking to travel to the
United States” and “increases the chance that conditions will be
exploited to enable terrorist operatives or sympathizers to travel
to the United States.”

Order § 1(d).

Respondents do not attack those findings on their own terms.
Instead, they distort the Order’s rationale, arguing that there is
“no basis for thinking that all nationals of the six covered
countries * * * pose a risk of terrorism.” Supp. Br. 23 (emphasis
omitted).

But the Order does not find that all nationals of Iran,

Libya, Somalia, Sudan, Syria, and Yemen pose terrorism threats.
Rather, the Order finds that the United States may not have
complete, reliable information to determine which nationals of
those countries pose such a threat.

Respondents dismiss (Supp.

Br. 24) that concern as “newly minted,” but it appears on the
Order’s face.

See Order § 1(d); see also Gov’t C.A. Br. 10.

The

Order is premised on the “unacceptably high” “risk” that would-be
terrorists will exploit conditions in their home countries to
travel to this Nation undetected.

Order § 1(d); see id. § 1(f).

Respondents’ argument boils down to a policy disagreement
with

the

President’s

risk

assessment

and

whether

the

Order

12
adequately addresses it.

For instance, respondents contend (Supp.

Br. 23) that the Order is overinclusive because some of the
affected nationals live elsewhere, but that line reflects the need
for information from foreign governments about their nationals
(indeed, the Order expressly excludes dual nationals traveling on
a

passport

§ 3(b)(iv)).

not

issued

by

one

of

the

six

countries,

Order

Respondents similarly argue (Supp. Br. 24) that the

suspension is overbroad because immigration officials can deny
entry to suspected terrorists on a case-by-case basis.

But the

question is whether the foreign governments specified in the Order
are willing and able to provide reliable information, and the
President has made a categorical judgment that a temporary pause
on

entry

is

warranted

while

he

investigates

that

situation.

Respondents’ objections to that judgment belong in the political
arena, not the courts.
2.

The Order is consistent with 8 U.S.C. 1152(a)
and 1157

Respondents

press

(Supp.

Br.

26-28)

arguments that the Ninth Circuit adopted.

two

other

statutory

Both lack merit, and

neither supports the full scope of the current injunction.
a.

Respondents argue (Supp. Br. 26-27) that Section 2(c)’s

temporary pause on entry violates 8 U.S.C. 1152(a)(1)(A) because
its

implementation

nationality.

entails

denying

visas

based

partly

on

Even if that were correct, the claim would not

support affirmance for two reasons.

First, it has nothing to do

13
with the refugee suspension and cap, which apply without any regard
to nationality.

Second, Section 1152(a)(1)(A) deals with the

issuance of immigrant visas -- not the issuance of nonimmigrant
visas, and not entry into the United States.

At most, the claim

would require the government to issue immigrant visas to a fraction
of the aliens affected by Section 2(c), who could then be barred
from entry when they arrived at the Nation’s borders.
Sections 1152 and 1182 should be interpreted in harmony not
to require that fruitless result.

Section 1182(f) provides that

the President may suspend the entry of aliens “as immigrants or
nonimmigrants,” and there is no evident reason why Congress would
have wanted the former set (but not the latter) to receive visas
but be denied admission.

8 U.S.C. 1182(f).

To the contrary,

Congress specified that no visa may issue if the applicant “is
ineligible

* * *

under

[S]ection

1182.”

8 U.S.C.

1201(g).

Section 1182 lists many such grounds for ineligibility, among them
health, criminal history, and terrorist affiliation.

Whatever the

relevant underlying ground in any individual case, the alien is
denied a visa because he is “ineligible” to enter “under [S]ection
1182.”

So too here, if an alien is subject to the Order and does

not receive a waiver, he is being denied an immigrant visa because
he has been validly barred from entering the country under Section
1182(f) -- not because he is suffering the type of nationalitybased discrimination prohibited by Section 1152(a)(1)(A).

14
That

reading

not

only

harmonizes

1182(f), but it has other virtues as well.

Sections

1152(a)

and

First, it accords with

the settled principle that the later-enacted Section 1152 should
not

be

construed

implication.

as

partially

repealing

Gov’t Supp. Br. 22.

Section

1182(f)

by

Second, it is consistent with

longstanding State Department practice, which has treated aliens
covered by Section 1182(f) proclamations as ineligible for visas.
See 9 U.S. Dep’t of State,

Foreign Affairs Manual 302.14-3(B)

(2016). Third, it avoids the constitutional concerns with limiting
the President’s authority to suspend the entry of nationals from
any particular foreign country.

Respondents avoid those concerns

only by reading into Section 1152(a)(1)(A) an atextual exception
for “a national emergency,” Supp. Br. 27 n.6, thereby conceding
the fundamental difficulties with their interpretation.
b.

Respondents further argue (Supp. Br. 27-28) that Section

6(b)’s refugee cap violates 8 U.S.C. 1157.

That claim has no

bearing on Sections 2(c) or 6(a), and it lacks merit.

Respondents

do not grapple at all with the statutory text, purpose, or history.
They deny that there is a “textual basis” for permitting fewer
refugees than the annually authorized maximum, but the statutory
text is undeniably discretionary:

Section 1157 speaks of “the

number of refugees who may be admitted.”
(emphasis added).

8 U.S.C. 1157(a)(2)

Respondents do not address the legislative

history or the fact that the number of admitted refugees often
falls far below the maximum.

Gov’t Supp. Br. 25-26 & nn.4-5.

15
3.

The Order is consistent with 8 U.S.C. 1182(a)

Finally, respondents press (Supp. Br. 20-22) an argument that
the court of appeals did not adopt.

Contrary to the suggestion

created by their spliced quotations (id. at 20), the court declined
to

decide

whether

1182(a)(3)(B).

Section

2(c)

conflicts

with

8 U.S.C.

Supp. Add. 60 (“We need not decide the precise

scope of § 1182(f) authority in relation to § 1182(a)(3)(B).”).
Respondents’ own cases show that there is no conflict:

both

Abourezk v. Reagan, 785 F.2d 1043, 1049 n.2 (D.C. Cir. 1986) (R.B.
Ginsburg, J.), aff’d by an equally divided Court, 484 U.S. 1
(1987), and Allende v. Shultz, 845 F.2d 1111, 1118-1119 (1st Cir.
1988),

explained

that

the

President

may

use

his

“sweeping

proclamation power” under Section 1182(f) to suspend entry of
aliens for reasons that overlap with Section 1182(a)’s grounds of
inadmissibility.

That Congress “considered the terrorism risk

posed by nationals of these countries” and adopted certain measures
(Resps. Supp. Br. 21) is beside the point, because Congress also
expressly gave the President power to suspend entry of any alien
whose entry he finds detrimental to the Nation’s interests.4

4

Respondents vaguely assert (Supp. Br. 21-22) that the Order
conflicts with the “structure and policies” of immigration law.
Historical practice suspending or restricting entry based partly
on nationality under both Sections 1182(f) and 1185(a)(1)
forecloses any contention that the immigration laws implicitly
preclude such distinctions. Gov’t C.A. Br. 22; D. Ct. Doc. 145,
at 28 (Mar. 13, 2017).
The “power” to “exclude or expel” is
“inherent because the very idea of nationhood requires the drawing
of thorny lines -- between members and non-members, between
admitted and excluded.” Ledezma-Cosino v. Sessions, No. 12-73289,

16
C.

Respondents’ Establishment Clause Claim Is Meritless

Respondents’ reiteration (Supp. Br. 15-16, 28-31) of their
Establishment Clause claim adds nothing to the analysis.

They

insist (id. at 15) that their claims are justiciable, repeating in
two sentences the purported harms they suffer.

But each of those

alleged harms stems from application of the Order to others, i.e.,
aliens abroad.

This Court has made clear -- including in McGowan

v. Maryland, 366 U.S. 420, 429-430 (1961) -- that individuals
indirectly injured by alleged religious discrimination against
others

generally

may

not

sue.

Gov’t

C.A.

Respondents offer no answer to that clear rule.

Reply

Br.

9-10.

They argue that

the Order violates their own religious-freedom rights because it
sends them an offensive “message,” but the D.C. Circuit rejected
that end run around standing limitations in In re Navy Chaplaincy,
534 F.3d 756 (2008), which respondents do not address.
On the merits, respondents misread (Supp. Br. 28) Mandel,
408 U.S. 753, as applicable to policy decisions made by Congress
but not the Executive.

That approach makes no sense, particularly

where, as here, the President acts pursuant to express statutory
authority. Gov’t C.A. Reply Br. 12. Respondents also argue (Supp.
Br. 29) that Mandel invites looking behind facially legitimate
objectives, but only the dissent in Mandel considered “the absence
of facts supporting the Government’s asserted purpose.”

See

2017 WL 2324717, at *6 (9th Cir. May 30, 2017) (en banc) (Kozinski,
J., joined by Bea and Ikuta, JJ., concurring).

17
408 U.S. at 778 (Marshall, J., dissenting).
declined to do so.

Id. at 770.

The Court expressly

Respondents’ further claim (Supp.

Br. 30-31) that the President’s Memorandum undermines the Order’s
facially legitimate and bona fide basis is wrong for the reasons
explained above.

See pp. 4-5, supra.5

III. THE BALANCE OF EQUITIES DECISIVELY FAVORS A STAY
The

balance

of

equities

strongly

injunction the Ninth Circuit affirmed.

supports

staying

the

At a minimum, respondents

have not demonstrated any cognizable injury from the Order’s
application to others besides Dr. Elshikh’s mother-in-law, much
less injury that could conceivably warrant global relief.
A.

Respondents minimize (Supp. Br. 31-32) the harms caused

by the injunction to the government and the public.

They dismiss

(ibid.) the interference with the President’s national-security
judgment

on

the

ground

that

the

Court

has

injunctions against federal policies before.

declined

to

stay

The interference

here, however, is direct and indisputable: the President expressly
determined that the Order’s provisions are needed to promote
national

security,

but

nullified that judgment.

5

the

lower

courts

here

(and

in

IRAP)

Respondents’ observation (id. at 32)

Respondents offer no additional justification for impugning
a religion-neutral Executive Order based on campaign statements.
They cite only a 22-year-old Second Circuit brief addressing -- in
the context of claims under the Fair Housing Act, 42 U.S.C. 3601
et seq. -- material showing that the local campaign to create a
new village was undertaken for the purpose of excluding a sect.
Resps. Supp. Br. 30-31 (citing Gov’t Reply Br., LeBlanc-Sternberg
v. Fletcher, 67 F.3d 412 (2d Cir. 1995) (No. 94-7103)).

18
that the Executive may take other steps to improve informationgathering from other countries misses the point:
in

consultation

with

Cabinet

officials,

the President,

determined

that

a

temporary pause was necessary to protect national security while
he assessed the willingness and ability of the governments of the
six Section 2(c) countries to provide the information necessary to
vet nationals from those countries properly.
B.

For their own part, respondents repeat (Supp. Br. 31)

the harms they previously alleged.

Critically, none of these

alleged injuries plausibly justifies enjoining Sections 2(c),
6(a), and 6(b) as to all persons worldwide.
First, the only injury Dr. Elshikh asserts for his statutory
challenge to Section 2(c) is the possible effect of the Order on
his mother-in-law’s entry.

Resps. Supp. Br. 10-11.

Even assuming

that claim is ripe, his putative injury would be fully redressed
by an injunction limited to her and Section 2(c).

Second, the

only injury Dr. Elshikh asserts for his constitutional challenge
to Section 2(c) is the “message” that the Order allegedly conveys.
To the extent respondents contend that injury would justify a
global injunction, it only underscores why the injury cannot be
cognizable in the first place.

See pp. 6-7, supra.

A plaintiff

cannot reframe government conduct directed at aliens abroad as
government speech directed at U.S. citizens in order to obtain a
global injunction.

Third, the only injury Dr. Elshikh asserts for

the refugee provisions in Section 6(a) and (b) is that “[h]e is

19
the Imam of a mosque in Hawaii that counts refugees as members.”
Resps. Supp. Br. 12.

That injury is plainly not cognizable, let

alone irreparable, and he identifies no refugee abroad whose entry
could possibly affect his rights.

Fourth, Hawaii’s putative

injuries add nothing. The State identifies no cognizable sovereign
interest in the entry of aliens abroad, much less the entry of
refugees.
Like the court of appeals (Supp. Add. 75), respondents try to
dodge the problem by arguing (Supp. Br. 33) that global relief is
appropriate because every application of the Order is “illegal.”
That argument conflates the nature of respondents’ legal theory
with

what

matters

to

the

scope

of

equitable

relief:

the

irreparable injury to the plaintiffs before the Court based on a
violation

of

their

own

rights.

Wholly

apart

from

whether

respondents’ legal arguments would apply to every application of
Sections 2(c), 6(a), and 6(b), Article III and equitable principles
confine injunctive relief to that which is necessary to redress
respondents’ cognizable injuries.

Stay Appl. 37.

Respondents’ attempt (Supp. Br. 33-34) to derive a contrary
rule from this Court’s cases is unavailing. Their lead case, Santa
Fe Independent School District v. Doe, 530 U.S. 290 (2000), has no
bearing on the scope of injunctive relief and simply held the
school district’s prayer policy invalid. The relief granted there,
moreover, was permissible because the school-prayer policy was
directed to the audience of which the plaintiff was a part, and

20
could realistically be redressed only by ending the practice. That
is not true of any of respondents’ claims here.

Respondents’

remaining cases are still further afield.6
There is simply no basis for enjoining Sections 2(c), 6(a),
and 6(b) wholesale.

The Court should hold that the government is

likely to succeed on the merits and, as in United States Department
of Defense v. Meinhold, 510 U.S. 939 (1993), stay the injunction
except as to Dr. Elshikh’s mother-in-law (or, at most, also as to
specific

students

that

Hawaii

identifies

who

have

accepted

admission for the upcoming school year, cf. Aziz v. Trump, No.
17-116, 2017 WL 580855, at *10 (E.D. Va. Feb. 13, 2017)).

6

Most involved direct review in courts of appeals, see
National Wildlife Fed’n, 497 U.S. at 891-892, and have nothing to
do with the proper scope of injunctive relief in district-court
actions. See Gonzales v. Oregon, 546 U.S. 243 (2006), aff’g 368
F.3d 1118, 1120-1121 (9th Cir. 2004) (explaining that case involved
petition for direct review); Dole v. United Steelworkers of Am.,
494 U.S. 26 (1990); Pittston Coal Grp. v. Sebben, 488 U.S. 105
(1988); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). Reno v. ACLU,
521 U.S. 844 (1997), involved severability rather than relief to
nonparties, and the “vast array” of plaintiffs, the varied nature
of their conduct, and the vagueness of the statute made limiting
relief not “practicable.” Id. at 883-884; see id. at 861 nn.2728.
And Thornburgh v. American College of Obstetricians &
Gynecologists, 476 U.S. 747 (1986), and National League of Cities
v. Brennan, 419 U.S. 1321 (1974) (Burger, C.J., in chambers), did
not address the scope of injunctive relief for nonparties, and
each involved large organizations suing on behalf of their members.

21
CONCLUSION
The Court should construe the government’s stay application
as a petition for a writ of certiorari and grant the petition along
with the petition for a writ of certiorari in IRAP.

In addition,

the Court should stay the injunction in its entirety pending
disposition of the petition and any further proceedings in this
Court.

At a minimum, it should stay the injunction as to all

persons other than Dr. Elshikh’s mother-in-law and any specific
students Hawaii identifies who have accepted admission.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
JUNE 2017