State of Hawaii v. Trump

Filing 378

MEMORANDUM in Opposition re #368 MOTION for Temporary Restraining Order filed by John F. Kelly, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, U.S. Department of State, United States of America. (Bennett, Michelle)

CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI
Acting United States Attorney
EDRIC M. CHING
Assistant United States Attorney
JOHN R. TYLER
Assistant Branch Director
MICHELLE R. BENNETT (CO Bar No. 37050)
DANIEL SCHWEI (NY Bar)
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]; Fax: [phone]
E-mail: [e-mail]
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
STATE OF HAWAI’I and
ISMAIL ELSHIKH,
Plaintiffs,
v.
DONALD J. TRUMP, in his official
capacity as President of the United States;
U.S. DEPARTMENT OF HOMELAND
SECURITY; ELAINE DUKE, in her official
capacity as Acting Secretary of Homeland
Security; U.S. DEPARTMENT OF STATE;
REX TILLERSON, in his official capacity as
Secretary of State; and the UNITED
STATES OF AMERICA,
Defendants.

No. 1:17-cv-00050-DKWKSC
DEFENDANTS’
MEMORANDUM IN
OPPOSITION TO
PLAINTIFFS’ MOTION
FOR TEMPORARY
RESTRAINING ORDER
Judge: Hon. Derrick K.
Watson
Related Documents:
Dkt. No. 368

TABLE OF CONTENTS
Page
INTRODUCTION ...................................................................................................1
BACKGROUND .....................................................................................................4
I.

LEGAL FRAMEWORK ...............................................................................4

II.

EXECUTIVE ORDER NO. 13,780 ..............................................................5

III.

THE PRESIDENT’S PROCLAMATION ....................................................7
A.

DHS’s Worldwide Review And Recommendations ...........................7

B.

The President’s Findings And Suspensions Of Entry .........................9

STANDARD OF REVIEW ...................................................................................11
ARGUMENT .........................................................................................................11
I.

PLAINTIFFS’ CHALLENGES TO THE PROCLAMATION ARE
NOT JUSTICIABLE ...................................................................................12
A.
B.

II.

Plaintiffs’ Statutory Challenges Are Not Reviewable ......................12
Plaintiffs Constitutional Claims Are Not Reviewable ......................15

PLAINTIFFS’ STATUTORY CLAIMS ARE NOT LIKELY TO
SUCCEED ON THE MERITS ....................................................................18
A.

The Proclamation Fits Well Within The President’s Broad
Constitutional And Statutory Authority To Suspend Entry Of
Aliens Abroad ...................................................................................18
1.

The President Has Extremely Broad Discretion to
Suspend Entry of Aliens Abroad ............................................18

2.

Under Any Standard, the Proclamation is Adequately
Justified By the President’s National Security and
Foreign Affairs Judgments......................................................22

i

3.
B.

Plaintiffs’ Asserted Limitations on the President’s
Statutory Authority are Incorrect ............................................26

The Proclamation Does Not Violate Section 1152(a)(1) ..................29
1.
2.

III.

There Is No Conflict Between the Non-Discrimination
Provision and the President’s Suspension Authorities ...........29
In the Event of a Conflict, the President’s Suspension
Authorities Would Prevail ......................................................31

THE PROCLAMATION DOES NOT VIOLATE THE
ESTABLISHMENT CLAUSE ....................................................................32
A.

The Proclamation Is Constitutional Under Mandel ..........................32

B.

The Proclamation Is Valid Under Domestic Establishment
Clause Precedent ...............................................................................35

IV.

THE REMAINING PRELIMINARY INJUNCTION FACTORS
WEIGH AGAINST RELIEF .......................................................................38

V.

A GLOBAL INJUNCTION WOULD BE INAPPROPRIATE ..................39

CONCLUSION ......................................................................................................40

ii

TABLE OF AUTHORITIES
Cases

Page(s)

Abourezk v. Reagan,
785 F.2d 1043 (D.C. Cir. 1986) .................................................................. 15, 19
Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez,
458 U.S. 592 (1982) ...........................................................................................16
Allen v. Wright,
468 U.S. 737 (1984) ...........................................................................................17
Allende v. Shultz,
845 F.2d 1111 (1st Cir. 1988) ..................................................................... 19, 20
Armstrong v. Exceptional Child Ctr., Inc.,
135 S. Ct. 1378 (2015) .......................................................................................15
Books v. City of Elkhart,
235 F.3d 292 (7th Cir. 2000) ..............................................................................37
Direx Israel, Ltd. v. Breakthrough Med. Corp.,
952 F.2d 802 (4th Cir. 1991) ..............................................................................38
Dep’t of Navy v. Egan,
484 U.S. 518 (1988) .................................................................................... 22, 28
Felix v. City of Bloomfield,
841 F.3d 848 (10th Cir. 2016) ............................................................................37
Fiallo v. Bell,
430 U.S. 787 (1977) .................................................................................... 12, 32
Franklin v. Massachusetts,
505 U.S. 788 (1992) ...........................................................................................14
Haig v. Agee,
453 U.S. 280 (1981) .................................................................................... 19, 39

iii

Haitian Refugee Ctr., Inc. v. Baker,
953 F.2d 1498 (11th Cir. 1992) ................................................................... 15, 19
Hawaii v. Trump,
245 F. Supp. 3d 1227 (D. Haw. 2017) .......................................................... 6, 36
Hawaii v. Trump,
859 F.3d 741 (9th Cir. 2017) ............................................................. 6, 23, 24, 25
In re Navy Chaplaincy,
534 F.3d 756 (2008), cert. denied, 556 U.S. 1167 (2009) .................................18
Int’l Refugee Assistance Project (“IRAP”) v. Trump,
241 F. Supp. 3d 539 (D. Md. 2017) .....................................................................6
Int’l Refugee Assistance Project (“IRAP”) v. Trump,
857 F.3d 554 (4th Cir. 2017) ................................................................................6
Jama v. Immigration & Customs Enf’t,
543 U.S. 335 (2005) ...........................................................................................28
Kerry v. Din,
135 S. Ct. 2128 (2015) ................................................................................ 15, 16
Kiobel v. Royal Dutch Petroleum Co.,
569 U.S. 108 (2013) ...........................................................................................23
Kleindienst v. Mandel,
408 U.S. 753 (1972) ................................................................................... passim
Lewis v. Casey,
518 U.S. 343 (1996) ...........................................................................................39
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) ...........................................................................................39
Maryland v. King,
567 U.S. 1301 (2012) .........................................................................................39

iv

McCreary Cty. v. ACLU of Ky.,
545 U.S. 844 (2005) ........................................................................ 35, 36, 37, 38
McGowan v. Maryland,
366 U.S. 420 (1961) .................................................................................... 16, 17
Mow Sun Wong v. Campbell,
626 F.2d 739 (9th Cir. 1980) ..............................................................................19
Nademi v. INS,
679 F.2d 811 (10th Cir. 1982) ............................................................................21
Reno v. Am.-Arab Anti-Discrimination Comm.(“AAADC”),
525 U.S. 471 (1999) .................................................................................... 20, 34
Saavedra Bruno v. Albright,
197 F.3d 1153 (D.C. Cir. 1999) .................................................................. 12, 13
Sale v. Haitian Centers Council, Inc.,
509 U.S. 155 (1993) ................................................................................... passim
Sessions v. Morales-Santana,
137 S. Ct. 1678 (2017) .......................................................................................33
Town of Chester v. Laroe Estates, Inc.,
137 S. Ct. 1645 (2017) .......................................................................................39
Trump v. IRAP,
137 S. Ct. 2080 (2017) .........................................................................................6
Trump v. IRAP,
No. 16-1436, 2017 WL 4518553 (U.S. Oct. 10, 2017) ........................................6
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ................................................................................... passim
United States v. George S. Bush & Co.,
310 U.S. 371 (1940) ...........................................................................................20

v

Valley Forge Christian Coll. v. Ams. United for Separation of
Church & State, Inc.,
454 U.S. 464 (1982) ...........................................................................................17
Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017) ............................................................................32
Webster v. Doe,
486 U.S. 592 (1988) ...........................................................................................20
W. & S. Life Ins. Co. v. State Bd. of Equalization of Cal.,
451 U.S. 648 (1981) ...........................................................................................33
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) ........................................................................................ 11, 38
Yassini v. Crosland,
618 F.2d 1356 (9th Cir. 1980) ............................................................................21
Zemel v. Rusk,
381 U.S. 1 (1965) ...............................................................................................28
STATUTES
5 U.S.C. § 701 ................................................................................................. 13, 15
5 U.S.C. § 704 ........................................................................................................14
6 U.S.C. § 236 ........................................................................................................13
8 U.S.C. § 1181 ........................................................................................................4
8 U.S.C. § 1182 ............................................................................................. 4, 5, 29
8 U.S.C. § 1182 (f) ......................................................................................... passim
8 U.S.C. § 1185 ......................................................................................................19
8 U.S.C. § 1185 (a)(1) .................................................................................... passim

vi

8 U.S.C. § 1187 ................................................................................................. 5, 36
8 U.S.C. § 1201 ........................................................................................... 5, 13, 14
8 U.S.C. § 1202 ........................................................................................................5
8 U.S.C. § 1203 ........................................................................................................4
8 U.S.C. § 1204 ........................................................................................................5
8 U.S.C. § 1225 ........................................................................................................5
Foreign Relations Authorization Act, Fiscal Year 1979,
Pub. L. No. 95-426, 92 Stat. 963 (1978) ............................................................31
Hostage Relief At of 1980,
Pub. L. No. 96-449, 94 Stat. 1967 ......................................................................27
REGULATIONS
22 C.F.R. § 41.102 ...................................................................................................5
22 C.F.R. § 42.62 .....................................................................................................5
45 Fed. Reg. 24,436 (Apr. 9, 1980) .......................................................................30
Enhancing Vetting Capabilities and Processes for Detecting Attempted
Entry Into the United States by Terrorists or Other Public-Safety Threats,
Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017) ................. passim
Exec. Order No. 12,172, 44 Fed. Reg. 67,947 (Nov. 26, 1979) ..................... 21, 30
Exec. Order No. 12,206, 45 Fed. Reg. 24,101 (Apr. 7, 1980) ...............................30
Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (May 24, 1992).............................21
Exec. Order No. 13,662, 79 Fed. Reg. 16,169 (Mar. 24, 2014) ............................27
Exec. Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) ...................... passim

vii

Proclamation No. 5517, 51 Fed. Reg. 30,470 (Aug. 26, 1986) ...................... 27, 30
Proclamation No. 5829, 53 Fed. Reg. 22,289 (June 14, 1988)..............................21
Proclamation No. 5887, 53 Fed. Reg. 43,185 (Oct. 26, 1988) ..............................21
Proclamation No. 6730, 59 Fed. Reg. 50,683 (Oct. 5, 1994) ................................27
Proclamation No. 6958, 61 Fed. Reg. 60,007 (Nov. 26, 1996) .............................21
Proclamation No. 7524, 67 Fed. Reg. 8857 (Feb. 26, 2002) .................................27
Proclamation No. 8342, 74 Fed. Reg. 4093 (Jan. 22, 2009)..................................21
Proclamation No. 8693, 76 Fed. Reg. 44,751 (July 27, 2011) ..............................21
LEGISLATIVE MATERIALS
H. Rep. No. 745, 89th Cong., 1st Session (1965) ...................................................29
S. Rep. No. 89-748 (1965),
as reprinted in 1965 U.S.C.C.A.N. 3328 ...........................................................29
OTHER AUTHORITIES
Immigration Laws and Iranian Students,
4A Op. O.L.C. 133 (1979)..................................................................................30
CIA, The World Factbook: Africa: Chad,
https://www.cia.gov/library/publications/the-world-factbook/geos/cd.html .....36
Washington Post Staff, President Trump’s full speech from Saudi Arabia
on global terrorism, Wash. Post, May 21, 2017,
https://goo.gl/viJRg2 ..........................................................................................38
The American Presidency Project, Jimmy Carter, Sanctions Against Iran:
Remarks Announcing U.S. Actions (Apr. 7, 1980),
https://goo.gl/4iX168 ..........................................................................................30

viii

INTRODUCTION
Over the past several months, the Department of Homeland Security, in
consultation with the Department of State and Director of National Intelligence,
conducted a worldwide review of foreign governments’ information-sharing
practices and risk factors, evaluated each country according to a set of religionneutral criteria, and identified countries with inadequate information-sharing
practices.

The Secretary of State then engaged countries diplomatically to

encourage them to improve their performance. The Acting Secretary of Homeland
Security reported the results of this review to the President, recommending that the
President impose entry restrictions on nationals from eight countries whose
information-sharing practices continued to be inadequate or that otherwise
presented special risk factors.

After reviewing the Acting Secretary’s

recommendations and consulting within the Executive Branch, the President
crafted “country-specific restrictions” that, in his judgment, “would be most likely
to encourage cooperation given each country’s distinct circumstances, and that
would, at the same time, protect the United States until such time as improvements
occur.” Pursuant to broad constitutional and statutory authority to suspend or
restrict the entry of aliens abroad when he deems it in the Nation’s interest, the
President issued a Proclamation describing those restrictions and the particular
country-conditions justifying them.

See Proclamation No. 9645, Enhancing

Vetting Capabilities and Processes for Detecting Attempted Entry into the United
States by Terrorists or Other Public-Safety Threats, 82 Fed. Reg. 45,161 (Sept. 27,
2017).
Plaintiffs have now shown that, no matter how thorough the Government’s
process, they will continue to allege that the President’s actions are motivated by
animus. Plaintiffs ask this Court to enjoin the Proclamation worldwide, nullifying
a formal national-security and foreign-policy directive of the President based on
extensive investigations and recommendations of several Cabinet Secretaries.
Their request threatens the ability of this or any future President to take necessary
steps to protect the Nation.
Irrespective of earlier findings by this Court and the Ninth Circuit that
Executive Order No. 13,780 (“EO-2”) was flawed in certain respects, those alleged
flaws do not apply to the Proclamation here, which is amply justified by the
President’s constitutional powers and the authority conferred on him by 8 U.S.C.
§§ 1182(f) and 1185(a)(1). The President determined that, for countries with
inadequate information-sharing practices or other special circumstances, it would
be detrimental to the Nation’s interests to allow certain foreign nationals of those
countries to enter the United States, because “the United States Government lacks
sufficient information to assess the risks they pose to the United States,” and
because the entry restrictions “are also needed to elicit improved identity2

management and information-sharing protocols and practices from foreign
governments[.]” Procl. § 1(h)(i). Nor does the President’s determination run afoul
of any other Congressional enactment, which determine the minimum requirements
for an alien to obtain entry, but which do not impliedly repeal the President’s
authority to impose additional restrictions when he deems appropriate under
§§ 1182(f) or 1185(a)(1). Even applying the Ninth Circuit’s standards for those
statutes, the Proclamation easily passes.
Plaintiffs’ Establishment Clause claim is governed by, and fails, Kleindienst
v. Mandel, 408 U.S. 753 (1972), which requires upholding the Executive’s decision
to exclude aliens abroad so long as that decision rests on a “facially legitimate and
bona fide reason.” Id. at 770. The Proclamation’s entry restrictions rest squarely
on national-security and foreign-policy determinations by the President that are
legitimate on their face and supported by extensive findings. Plaintiffs’ theory
would require this Court to impugn the motives of the numerous Cabinet
Secretaries and other government officials who participated in the world-wide
review that culminated in the Acting Secretary’s recommendations to the President.
Even without regard to Mandel, moreover, the Proclamation has nothing to do with
religion on its face or in its operation, and Plaintiffs have not demonstrated that the
Proclamation—the product of a review by multiple agencies—was motivated by

3

religious animus. It was based on a thorough, worldwide review and engagement
process that resulted in tailored, country-specific restrictions.
Before reaching the merits, though, Plaintiffs’ claims are not justiciable at
all. No visa applications of the aliens abroad identified by Plaintiffs have been
refused based on the Proclamation. In any event, Plaintiffs’ statutory challenges
are foreclosed by the general rule that courts may not second-guess the political
branches’ decisions to exclude aliens abroad where Congress has not authorized
review, which it has not done here. Plaintiffs’ constitutional challenges fare no
better, because they do not assert a cognizable violation of their own constitutional
rights. Plaintiffs’ motion for a temporary restraining order should therefore be
denied.
BACKGROUND
I.

LEGAL FRAMEWORK
“The exclusion of aliens is a fundamental act of sovereignty” that is both an

aspect of the “legislative power” and “inherent in the executive power to control
the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughnessy, 338
U.S. 537, 542 (1950).
Under the Immigration and Nationality Act (“INA”), admission to the United
States normally requires a valid visa or other valid travel document. 8 U.S.C.
§§ 1181, 1182(a)(7)(A)(i) and (B)(i)(II), 1203. Applying for a visa typically
4

requires an in-person interview and results in a decision by a Department of State
consular officer. Id. §§ 1201(a)(1), 1202(h), 1204; 22 C.F.R. §§ 41.102, 42.62.
Although a visa generally is necessary for admission, it does not guarantee
admission; the alien still must be found admissible upon arriving at a port of entry.
8 U.S.C. §§ 1201(h), 1225(a). Congress has enabled certain nationals of certain
countries to seek temporary admission without a visa under the Visa Waiver
Program. Id. §§ 1182, 1187.
Building upon the President’s inherent authority to exclude aliens, see
Knauff, 338 U.S. at 542, Congress has likewise accorded the President broad
discretion to restrict the entry of aliens. Section 1182(f ) of Title 8 authorizes the
President to “suspend the entry of all aliens or any class of aliens” “for such period
as he shall deem necessary” whenever he finds that such entry “would be
detrimental to the interests of the United States.” Section 1185(a)(1) further
empowers the President to adopt “reasonable rules, regulations,” “orders,” and
“limitations and exceptions” on the entry of aliens. Pursuant to these authorities,
President Reagan suspended entry of all Cuban nationals in 1986, and President
Carter denied and revoked visas to Iranian nationals in 1979.
II.

EXECUTIVE ORDER NO. 13,780
On March 6, 2017, the President issued Executive Order No. 13,780, 82 Fed.

Reg. 13,209 (Mar. 9, 2017). EO-2 directed the Secretary of Homeland Security to
5

conduct a global review to determine whether foreign governments provide
adequate information about their nationals seeking U.S. visas, EO-2 § 2(a), and to
report his findings to the President.
During that review, EO-2 imposed a 90-day entry suspension on certain
foreign nationals from six countries—Iran, Libya, Somalia, Sudan, Syria, and
Yemen—all of which had been identified by Congress or the Department of
Homeland Security (DHS) as presenting heighted terrorism-related concerns. Id.
§ 2(c). That 90-day suspension was preliminarily enjoined by this Court and one
other district court. See Hawaii v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017);
IRAP v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017). Those injunctions were
affirmed in relevant part. See Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) (per
curiam); IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc).
The Supreme Court granted certiorari in both cases and partially stayed the
injunctions pending its review. Trump v. IRAP, 137 S. Ct. 2080 (2017). After
EO-2’s entry suspension expired, the Supreme Court vacated the IRAP injunction
as moot. See Trump v. IRAP, 2017 WL 4518553 (U.S. Oct. 10, 2017). The Ninth
Circuit’s decision also affirmed the injunction of Section 6(a) of EO-2, concerning
refugees, which is set to expire on October 24, 2017.

6

III.

THE PRESIDENT’S PROCLAMATION
On September 24, 2017, following completion of the Government’s review

and engagement processes, the President signed Proclamation No. 9645.
A.

DHS’S WORLDWIDE REVIEW AND RECOMMENDATIONS

The Proclamation describes the extensive, worldwide review of the nation’s
vetting procedures that preceded it.

First, DHS, in consultation with the

Department of State and the Director of National Intelligence, established
categories of information needed from foreign governments to enable the United
States to assess its ability to make informed decisions about foreign nationals
applying for visas. That information “baseline” has three components:
(1) identity-management information, to assess “whether the country
issues electronic passports embedded with data to enable confirmation
of identity, reports lost and stolen passports to appropriate entities, and
makes available upon request identity-related information not
included in its passports”;
(2) national-security and public-safety information, to determine
“whether the country makes available . . . known or suspected terrorist
and criminal-history information upon request, whether the country
provides passport and national-identity document exemplars, and
whether the country impedes the United States Government’s receipt
of information”; and
(3) a national-security and public-safety risk assessment, including
such factors as “whether the country is a known or potential terrorist
safe haven, whether it is a participant in the Visa Waiver Program . . .
that meets all of [the program’s] requirements, and whether it
regularly fails to receive its nationals subject to final orders of removal
from the United States.”
7

Procl. § 1(c).
DHS, in coordination with the Department of State, then collected data on,
and evaluated, every foreign country according to these criteria. Out of nearly 200
countries evaluated, the Acting Secretary of DHS identified the informationsharing practices and risk factors of 16 countries as “inadequate.” Procl. § 1(e).
Another 31 countries were found “at risk” of becoming “inadequate.” Id. These
preliminary results were submitted to the President. Id. § 1(c). The Department of
State then conducted a 50-day engagement period to encourage all foreign
governments to improve their performance, which yielded significant gains—29
countries provided travel-document exemplars to combat fraud, and 11 countries
agreed to share information on known or suspected terrorists. Procl. § 1(f).
The Acting Secretary of DHS then submitted a report to the President
recommending tailored entry restrictions on certain nationals from seven countries
(Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen) that continue to be
“inadequate” with respect to information-sharing and risk factors. Id. § 1(h)(ii).
The Acting Secretary also recommended entry restrictions on nationals of Somalia.
Although Somalia generally satisfied the information-sharing criteria, the Acting
Secretary found that the Somali government’s inability to effectively and
consistently cooperate, as well as the terrorist threat within its territory, present
special circumstances warranting entry restrictions.
8

Id. § 1(i).

The Acting

Secretary determined that an eighth country (Iraq) did not meet informationsharing requirements, but in lieu of entry restrictions, recommended additional
scrutiny of Iraqi nationals seeking entry because of the United States’ close
cooperative relationship with Iraq, the strong United States diplomatic presence in
Iraq, the significant presence of United States forces in Iraq, and Iraq’s commitment
to combatting ISIS. Id. § 1(g).
B.

THE PRESIDENT’S FINDINGS AND SUSPENSIONS OF ENTRY

After considering the Acting Secretary’s recommendations and consulting
with his Cabinet, the President issued the Proclamation pursuant to his inherent and
statutory authorities, including 8 U.S.C. §§ 1182(f) and 1185(a)(1). The President
considered “several factors, including each country’s capacity, ability, and
willingness to cooperate with our identity-management and information-sharing
policies and each country’s risk factors,” as well as “foreign policy, national
security, and counterterrorism goals.” Procl. § 1(h)(i). The President sought to
“craft[] those country-specific restrictions that would be most likely to encourage
cooperation given each country’s distinct circumstances, and that would, at the
same time, protect the United States until such time as improvements occur.” Id.
Accordingly, for countries that refuse to cooperate regularly with the United
States (Iran, North Korea, and Syria), the Proclamation suspends entry of nationals
seeking both immigrant and nonimmigrant visas; all classes of nonimmigrant visas
9

are suspended for North Korea and Syria, and all are suspended for Iran except
student (F and M) and exchange visitor (J) visas. Id. §§ 2(b)(ii), (d)(ii), (e)(ii). For
countries that are valuable counter-terrorism partners but nonetheless have
information-sharing deficiencies (Chad, Libya, and Yemen), the Proclamation
suspends entry only of persons seeking immigrant visas and business, tourist, and
business/tourist nonimmigrant (B-1, B-2, B-1/B-2) visas. Id. §§ 2(a)(ii), (c)(ii),
(g)(ii).

For Somalia, the Proclamation suspends entry of persons seeking

immigrant visas, and requires additional scrutiny of nationals seeking
nonimmigrant visas. Id. § 2(h)(ii). And for Venezuela, the Proclamation suspends
entry of “officials of government agencies of Venezuela involved in screening and
vetting procedures” and “their immediate family members” on nonimmigrant
business and tourist visas. Id. § 2(f)(ii). For each country, the Proclamation
summarizes some of the country conditions and inadequacies warranting the
restrictions. Id. § 2. The Proclamation also provides for case-by-case waivers. Id.
§ 3(c).
The restrictions on each country are “to encourage cooperation” and to
“protect the United States until such time as improvements occur.” Id. § 1(h)(i);
see also Procl. pmbl. To that end, the Proclamation requires an ongoing review to
determine whether the limitations imposed should be continued, terminated,
modified, or supplemented. Id. § 4.
10

The entry suspensions were effective immediately for foreign nationals
previously restricted under EO-2 and the Supreme Court’s stay order, id. § 7(a),
but for all other covered persons they will be effective at 12:01 a.m. EDT on
October 18, 2017, id. § 7(b).
STANDARD OF REVIEW
Plaintiffs “must establish that [they are] likely to succeed on the merits, that
[they are] likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in [their] favor, and that [the relief] is in the public
interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
ARGUMENT
Plaintiffs rely heavily on this Court’s and the Ninth Circuit’s decisions
addressing EO-2. But the courts’ conclusions regarding EO-2 in Hawaii do not
apply to the Proclamation, an entirely different policy adopted following the
extensive review process described above.

11

I.

PLAINTIFFS’ CHALLENGES TO THE PROCLAMATION ARE
NOT JUSTICIABLE
A.

PLAINTIFFS’ STATUTORY CHALLENGES ARE NOT REVIEWABLE

1. The Supreme Court “ha[s] long recognized the power to . . . exclude aliens
as a fundamental sovereign attribute exercised by the Government’s political
departments largely immune from judicial control.” Fiallo v. Bell, 430 U.S. 787,
792 (1977).

“[I]t is not within the province of any court, unless expressly

authorized by law, to review the determination of the political branch of the
Government to exclude a given alien.” Knauff, 338 U.S. at 543.
Courts have distilled from these longstanding principles that the denial or
revocation of a visa for an alien abroad “is not subject to judicial review . . . unless
Congress says otherwise.” Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C.
Cir. 1999). Courts refer to that rule as “the doctrine of consular nonreviewability,”
id., but the short-hand label merely reflects the context in which the principle most
often arises—challenges to decisions by consular officers adjudicating visa
applications. The principle underlying that doctrine applies regardless of the
manner in which the Executive denies entry to an alien abroad. Indeed, it would
make no sense to bar review of consular officers’ case-specific determinations
while permitting review of decisions by the President that are grounded in sensitive
foreign-affairs and national-security determinations. See id. at 1159-60.
12

Congress has declined to provide for judicial review of decisions to exclude
aliens abroad. It has not authorized any judicial review of visa denials—even by
the alien affected, much less by third parties like Plaintiffs. E.g., 6 U.S.C. § 236(f );
see id. § 236(b)(1), (c)(1). Congress also has forbidden “judicial review” of visa
revocations (subject to a narrow exception inapplicable to aliens abroad). 8 U.S.C.
§ 1201(i).
2. Plaintiffs erroneously assert that the Administrative Procedure Act (APA)
authorizes judicial review of their statutory claims. See Hawaii Br. 11. The APA
does not apply “to the extent that . . . statutes preclude judicial review.” 5 U.S.C.
§ 701(a)(1).

Here, the conclusion is “unmistakable” from history that “the

immigration laws ‘preclude judicial review’ of []consular visa decisions.”
Saavedra Bruno, 197 F.3d at 1160. Moreover, APA § 702 itself contains a
“qualifying clause” that preserves “other limitations on judicial review” that
predated the APA.

Id. at 1158.

At a minimum, the general rule of

“nonreviewability . . . represents one of the ‘limitations on judicial review’
unaffected by § 702’s opening clause[.]” Id.
In 1961, Congress specifically abrogated a Supreme Court decision to
establish that even aliens physically present in the United States cannot seek review
of their exclusion orders under the APA. See Saavedra Bruno, 197 F.3d at 115762 (recounting history). It follows a fortiori that neither aliens abroad nor U.S.
13

citizens acting at their behest can invoke the APA to obtain review. And given that
Congress generally foreclosed “judicial review” of visa revocations, 8 U.S.C.
§ 1201(i), it is implausible that Congress authorized review of visa denials in the
first instance.1
3. Review is unavailable for three additional reasons. First, the APA
provides for judicial review only of “final agency action.” 5 U.S.C. § 704. The
President’s Proclamation is not “agency action” at all. Franklin v. Massachusetts,
505 U.S. 788, 800-01 (1992). And none of the aliens abroad identified by Plaintiffs
has been refused a visa based on the Proclamation. See Hawaii Br. 8-9. If any of
Plaintiffs’ relatives is denied both a visa and a waiver, then the Court can consider
their claims in the context of a live dispute. Similarly, Hawaii’s anticipated
difficulties in operating its universities are premature:

Hawaii identifies no

students, faculty, or speakers who have been admitted, offered employment, or
invited, but who have applied for and been denied a visa, and a waiver, under the
Proclamation. Hawaii Br. 6-8.

1

Plaintiffs assert that Sale v. Haitian Centers Council, Inc., 509 U.S. 155 (1993),
shows that their statutory claims are reviewable. See Hawaii Br. 12. But Sale did
not address reviewability because it simply rejected the plaintiffs’ claims on the
merits, and the aliens in Sale alleged that the INA and a treaty gave them a judicially
enforceable right. Here, Plaintiffs have no such colorable claim, as discussed
below.
14

Second, Plaintiffs lack a statutory right to enforce. Nothing in the INA gives
Plaintiffs a direct right to judicial review. See, e.g., Abourezk v. Reagan, 785 F.2d
1043, 1050 (D.C. Cir. 1986); Haitian Refugee Ctr., Inc. v. Baker, 953 F.2d 1498,
1505 (11th Cir. 1992). None of the statutes Plaintiffs invoke confers any rights on
third parties like Plaintiffs.
Finally, the APA does not apply “to the extent that . . . agency action is
committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Here, the relevant
statutes commit these matters to the President’s unreviewable discretion. See Part
II.A.1, infra.2
B.

PLAINTIFFS’ CONSTITUTIONAL CLAIMS ARE NOT REVIEWABLE

In Mandel, the Court reviewed (and rejected on the merits) a claim that the
denial of a waiver of visa-ineligibility to a Belgian national violated U.S. citizens’
own First Amendment right to receive information. 408 U.S. at 756-59, 762-70
(explaining that the alien himself could not seek review because he “had no
constitutional right of entry”). Similarly in Kerry v. Din, the Court considered but
denied a claim by a U.S. citizen that the refusal of a visa to her husband violated

2

Plaintiffs suggest that judicial review is available through equity. Hawaii Br. 11
(citing Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384-85 (2015)).
But the “judge-made remedy” in Armstrong does not permit Plaintiffs to sidestep
“express and implied statutory limitations” on judicial review, 135 S. Ct. at 138485, such as those under the APA.
15

her own due-process rights. 135 S. Ct. 2128, 2131 (2015) (opinion of Scalia, J.);
id. at 2139 (Kennedy, J., concurring in the judgment).
Here, Hawaii cannot assert that the Order violates any constitutional rights
of its own, and it cannot assert the constitutional rights of its residents as parens
patriae in a suit against the federal government. See Alfred L. Snapp & Son, Inc.
v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610 n.16 (1982). The individual
Plaintiffs allege that the Proclamation will prevent or delay their family members’
entry into the United States. See Hawaii Br. 8-9. But putting aside that no visa has
yet been denied pursuant to the Proclamation and this claim is therefore not ripe,
that claimed injury is not cognizable because it does not stem from an alleged
infringement of Plaintiffs’ own constitutional rights.
In McGowan v. Maryland, 366 U.S. 420 (1961), the Supreme Court held that
individuals who are indirectly injured by alleged religious discrimination against
others generally may not sue, because they have not suffered violations of their
own. Id. at 429-30. Likewise here, Plaintiffs are not asserting violations of their
own constitutional rights, but are instead asserting the interests of third-party
family members abroad.3
3

McGowan held that the plaintiffs could assert an Establishment Clause challenge
to the state law only because they suffered “direct . . . injury, allegedly due to the
imposition on them of the tenets of the Christian religion”: they were subjected to
(indeed, prosecuted under) a Sunday-closing law, which regulated their own
16

Plaintiffs also claim the Proclamation sends a “message” that condemns their
Islamic faith. See Hawaii Br. 9-10. This “message” injury is not cognizable
because it likewise does not result from a violation of Plaintiffs’ own constitutional
rights. The Supreme Court has “ma[de] clear” that “stigmatizing injury . . . accords
a basis for standing only to ‘those persons who are personally denied equal
treatment’ by the challenged discriminatory conduct.” Allen v. Wright, 468 U.S.
737, 755 (1984). The same rule applies to Establishment Clause claims. Valley
Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454
U.S. 464, 85-86 (1982).
A plaintiff may suffer a “spiritual” injury from the violation of his own
Establishment Clause rights where he is “subjected to unwelcome religious
exercises” or “forced to assume special burdens to avoid them.” Valley Forge, 454
U.S. at 486-487 n.22. But neither is true here. The Proclamation does not expose
Plaintiffs to a religious message: it says nothing about religion, and does not
subject them to any religious exercise. A putative Establishment Clause plaintiff
may not “re-characterize[]” an abstract injury flowing from “government action”
directed against others as a personal injury from “a governmental message

conduct. 366 U.S. at 422, 430-31. That contrasts with the indirect injury here from
alleged discrimination against aliens abroad.
17

[concerning] religion” directed at the plaintiff. In re Navy Chaplaincy, 534 F.3d
756, 764 (2008) (Kavanaugh, J.), cert. denied, 556 U.S. 1167 (2009).
II.

PLAINTIFFS’ STATUTORY CLAIMS ARE NOT LIKELY TO
SUCCEED ON THE MERITS
A.

THE PROCLAMATION FITS WELL WITHIN THE PRESIDENT’S BROAD
CONSTITUTIONAL AND STATUTORY AUTHORITY TO SUSPEND ENTRY
OF ALIENS ABROAD

The Proclamation was issued pursuant to the President’s Article II authority
and the broad statutory authority vested in him by 8 U.S.C. §§ 1182(f) and
1185(a)(1). The text of those statutes confirms the expansive discretion afforded
to the President, and historical practice likewise confirms that the President need
not offer detailed justifications for entry suspensions. Although the government
disagrees with the Ninth Circuit’s attempts to narrow the scope of those statutes,
the Proclamation satisfies the Ninth Circuit’s standard as well.
1.

The President Has Extremely Broad Discretion to Suspend
Entry of Aliens Abroad

a. As relevant here, 8 U.S.C. § 1182(f) provides the following:
Whenever the President finds that the entry of any aliens or of any
class of aliens into the United States would be detrimental to the
interests of the United States, he may by proclamation, and for such
period as he shall deem necessary, suspend the entry of all aliens or
any class of aliens as immigrants or nonimmigrants, or impose on the
entry of aliens any restrictions he may deem to be appropriate.

18

8 U.S.C. § 1182(f). This provision grants the President broad authority and
confirms his discretion at every turn.

At least four courts of appeals have

recognized that § 1182(f) provides the President with broad power to suspend the
entry of aliens. See Abourezk, 785 F.2d at 1049 n.2; Haitian Refugee Ctr., Inc.,
953 F.2d at 1507 ; Allende v. Shultz, 845 F.2d 1111, 1117-18 (1st Cir. 1988); Mow
Sun Wong v. Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980). The Supreme Court
itself has deemed it “perfectly clear that [Section] 1182(f ) . . . grants the President
ample power to establish a naval blockade that would simply deny illegal Haitian
migrants the ability to disembark on our shores.” Sale, 509 U.S. at 187.
In addition, 8 U.S.C. § 1185(a)(1) further provides:
Unless otherwise ordered by the President, it shall be unlawful . . . for
any alien to depart from or enter or attempt to depart from or enter the
United States except under such reasonable rules, regulations, and
orders, and subject to such limitations and exceptions as the President
may prescribe[.]
This statutory text likewise confirms the breadth of the President’s authority. This
section does not require any predicate findings whatsoever, but simply gives the
President authority to restrict entry to the United States according to “such
limitations and exceptions as the President may prescribe.” Id.; see also Haig v.
Agee, 453 U.S. 280, 297 (1981) (construing similar language in §1185(b) as
“le[aving] the power to make exceptions exclusively in the hands of the
Executive”); Allende, 845 F.2d at 1118 & n.13.
19

b. The plain text of these statutes provides no basis for judicial secondguessing of the President’s determinations about what restrictions to “prescribe” or
what restrictions are necessary to avoid “detriment[] to the interests of the United
States.” Congress specifically committed those matters to the President’s judgment
and discretion. Indeed, the statutes “fairly exude[] deference to the [President]”
and “appear[] . . . to foreclose the application of any meaningful judicial standard
of review,” such that it would be inappropriate for this Court to second-guess the
the President’s restrictions or their basis. Webster v. Doe, 486 U.S. 592, 600
(1988); see also Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491
(1999) [hereafter “AAADC”] (“The Executive should not have to disclose its ‘real’
reasons for deeming nationals of a particular country a special threat . . . and even
if it did disclose them a court would be ill equipped to determine their authenticity
and utterly unable to assess their adequacy.”). Thus, the President’s determinations
are “not subject to review.” United States v. George S. Bush & Co., 310 U.S. 371,
380 (1940).
c. Historical practice confirms the breadth of and deference owed to the
President’s authority. For decades Presidents have restricted entry pursuant to
§§ 1182(f) and 1185(a)(1) without detailed public justifications or findings; some
have discussed the President’s rationale in one or two sentences that broadly

20

declare the Nation’s interests.4 Executive Order No. 12,807—the Presidential
action at issue in Sale—contained only a single sentence justifying its measures.
See Exec. Order No. 12,807, pmbl. pt. 4 (May 24, 1992) (“There continues to be a
serious problem of persons attempting to come to the United States by sea without
necessary documentation and otherwise illegally.”).

But the Supreme Court

expressed no concerns about the adequacy of that finding, instead stating that
“[w]hether the President’s chosen method” made sense from a policy perspective
was “irrelevant to the scope of his authority” under the statute. Sale, 509 U.S.
at 187-88.
Similarly, in 1979 when President Carter invoked § 1185(a)(1) to restrict
Iranian nationals, the Executive Order contained no express findings and delegated
the authority to prescribe restrictions to lower Executive Branch officials. See
Exec. Order No. 12,172, § 1-101 (Nov. 26, 1979). Yet courts refused to invalidate
those restrictions. See Nademi v. INS, 679 F.2d 811, 813-14 (10th Cir. 1982);
Yassini v. Crosland, 618 F.2d 1356, 1362 (9th Cir. 1980).

4

E.g., Proclamation No. 8693 (July 27, 2011); Proclamation No. 8342 (Jan. 22,
2009); Proclamation No. 6958 (Nov. 26, 1996); Proclamation No. 5887 (Oct. 26,
1988); Proclamation No. 5829 (June 14, 1988).
21

2.

Under Any Standard, the Proclamation is Adequately
Justified By the President’s National Security and Foreign
Affairs Judgments

a. The President provided far more detail and explanation for his findings
than exist in other Presidential suspensions under §§ 1182(f) or 1185(a). The
President imposed the entry restrictions after reviewing the recommendations of
the Acting Secretary of DHS, as explained in the Proclamation, and her
recommendations were created following a worldwide review that evaluated every
country according to neutral criteria.
The President’s entry restrictions serve two purposes. First, the restrictions
are “necessary to prevent the entry of those foreign nationals about whom the
United States Government lacks sufficient information to assess the risks they pose
to the United States.” Id. § 1(h)(i); id. § 1(a)-(b) (discussing the importance of
foreign countries’ information-sharing to the overall security-vetting process).
Plaintiffs have no basis to contest the Executive Branch’s national-security
judgments, and it would be inappropriate for this Court to second-guess them. See
Department of Navy v. Egan, 484 U.S. 518, 530 (1988) (“courts traditionally have
been reluctant to intrude upon the authority of the Executive in military and
national security affairs”).
Second, the restrictions place pressure on foreign governments “to work with
the United States to address those inadequacies and risks so that the restrictions and
22

limitations imposed . . . may be relaxed or removed as soon as possible.” Id. § 1(h).
The utility of entry restrictions as a foreign-policy tool is confirmed by the results
of the diplomatic engagement period described in the Proclamation—the prospect
of entry restrictions yielded significant improvements in foreign countries’
information-sharing practices.

Id. § 1(e)-(g).

These foreign-relations efforts

independently justify the Proclamation and yet they are almost wholly ignored by
Plaintiffs. See also Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 115-16
(2013) (noting “the danger of unwarranted judicial interference in the conduct of
foreign policy”).
b. Plaintiffs argue that the Proclamation fails for the same reasons EO-2
failed before the Ninth Circuit. See Hawaii Br. 18-22 (citing Hawaii, 859 F.3d
at 770-74). But the Proclamation satisfies the standards the Ninth Circuit applied
as well.
First, the Ninth Circuit held that EO-2 made “no finding that nationality
alone renders entry of this broad class of individuals a heightened security risk to
the United States.” Hawaii, 859 F.3d at 772. But the Proclamation here explains
that “[s]creening and vetting protocols” play “a critical role” in protecting United
States citizens “from terrorist attacks and other public-safety threats,” Procl. § 1(a);
that “[i]nformation-sharing and identity-management protocols and practices of
foreign governments are important for the effectiveness of th[os]e screening and
23

vetting protocols,” id. § 1(b); that each of the eight countries was determined to
have “inadequate” practices under DHS’s baseline criteria or to present other
special circumstances, id. § 1(g); and therefore the Proclamation’s restrictions are
“necessary to prevent the entry of those foreign nationals about whom the United
States Government lacks sufficient information to assess the risks they pose to the
United States,” id. § 1(h)(i).

These findings necessarily turn on nationality,

because it is the inadequacy of the foreign governments’ practices concerning their
nationals that creates the risk inherent in those persons’ entry. Id. § 1(b).5
Similarly, the Proclamation explains that the entry restrictions are intended
to “elicit improved identity-management and information-sharing protocols and
practices from foreign governments” going forward. Procl. § 1(h)(i); see id. § 1(b).
The Ninth Circuit itself acknowledged the rationality of distinguishing among
“classes of aliens on the basis of nationality” when necessary “as retaliatory
diplomatic measures.” Hawaii, 859 F.3d at 772 n.13.
Second, the Ninth Circuit faulted EO-2’s use of nationality as over-inclusive
because it suspended entry even for “nationals without significant ties to the six
5

The Ninth Circuit also faulted EO-2 for not identifying a “link between an
individual’s nationality and their propensity to commit terrorism.” Hawaii, 859
F.3d at 772. To the extent the Ninth Circuit implied that the President must make
an individualized risk determination as to each particular national excluded, that
would plainly conflict with the statutes here, which permit the President to make
categorical determinations.
24

designated countries[.]” Hawaii, 859 F.3d at 773. As the Proclamation explains,
however, the “practices of foreign governments are important for the effectiveness
of the screening and vetting protocols and procedures of the United States,”
because these governments “manage the identity and travel documents of their
nationals,” and “also control the circumstances under which they provide
information about their nationals to other governments.” Procl. § 1(b). Such
practices, however, would apply to all of a foreign government’s nationals,
regardless of the degree of a foreign national’s connection to his or her country of
citizenship.
Third, the Ninth Circuit noted that EO-2 did not “make[] any finding that the
current screening processes are inadequate.” Hawaii, 859 F.3d at 773. But the
Proclamation expressly contains such a finding; the Acting Secretary conducted the
worldwide review “to identify whether, and if so what, additional information will
be needed from each foreign country to adjudicate an application by a national of
that country . . . in order to determine that the individual is not a security or publicsafety threat,” Procl. § 1(c), and after being evaluated under that standard, the eight
countries here were found to have inadequate information-sharing practices or to
present other risks, id. § 1(g), (i). Furthermore, the President found that the status
quo was inadequate to encourage greater cooperation from the eight nations. See
id. § 1(h)(i) (“These restrictions and limitations are also needed to elicit improved
25

identity-management and information-sharing protocols and practices from foreign
governments[.]” (emphasis added)).6
3.

Plaintiffs’ Asserted Limitations
Statutory Authority are Incorrect

on

the

President’s

Plaintiffs suggest three limitations on the President’s statutory authority.
None is correct.
a. Plaintiffs first suggest that the President’s authority under §§ 1182(f) and
1185(a) should be construed narrowly in light of the non-delegation doctrine. See
Hawaii Br. 22-24. But this argument is squarely foreclosed by Knauff, which
rejected a non-delegation challenge to the predecessor version of § 1185(a)(1)
because the exclusion of aliens also “implement[s] an inherent executive power.”
338 U.S. at 542.
b. Plaintiffs argue that §§ 1182(f) and 1185(a) may be used only to “exclude
(1) aliens akin to subversives, war criminals, and the statutorily inadmissible, and
(2) aliens who would undermine congressional policy during an exigency in which

6

Plaintiffs suggest that the President’s findings are irrational because, if risk of
entry is tied to a particular government’s practices, then the restrictions should
exclude non-immigrants and immigrants alike. Hawaii Br. 20-21. But as the
Proclamation explains, given that immigrants will generally remain in the country
longer and are harder to remove, Procl, § 1(h)(ii), it is perfectly rational to
determine that they pose greater risks and accordingly to impose further restrictions
on their entry.
26

it is impracticable for Congress to act.” Hawaii Br. 24. But these limitations find
no basis in the statutes’ text, history, or practice, and Plaintiffs’ theory would
require this Court to find that several prior presidential exercises of this authority
were unlawful. President Reagan’s suspension of Cuban immigrants in August
1986, which Plaintiffs cite approvingly, Hawaii Br. 27, was issued in response to
an event fifteen months earlier, see Proclamation No. 5517, pmbl. (Aug. 26,
1986)—not an exigency to which Congress could not respond. President Carter’s
1979 Executive Order responded to the Iranian hostage crisis, which lasted from
November 1979 to January 1981, and was the subject of legislation, see Hostage
Relief Act of 1980, Pub. L. No. 96-449, 94 Stat. 1967. But no court held that
Congressional action eliminated the President’s authority to impose restrictions on
Iranian nationals. More recently, Presidents have continued to use § 1182(f) not
solely to address exigencies, but rather as a tool to encourage foreign nations’
cooperation with the United States’ objectives. See, e.g., Exec. Order No. 13,662
(Mar. 24, 2014); Proclamation No. 7524 (Feb. 26, 2002); Proclamation No. 6730
(Oct. 5, 1994).
c. Plaintiffs argue the President’s authority under § 1182(f) is limited such
that he may not “supplant Congress’s scheme” under the INA. Hawaii Br. 28-29.
But there is no conflict here between the Proclamation and the INA: Congress has
set the minimum requirements for an alien to gain entry, and has also granted the
27

President authority to impose additional restrictions when he deems appropriate.
See Knauff, 338 U.S. at 541-42, 545-47.
Plaintiffs’ theory is particularly ill-suited to the arena of national security
and foreign affairs, which involve delicate balancing in the face of ever-changing
circumstances, such that the Executive must be permitted to act quickly and
flexibly. See Zemel v. Rusk, 381 U.S. 1, 17 (1965); see also Jama v. Immigration
& Customs Enf’t, 543 U.S. 335, 348 (2005). In this setting, courts typically apply
the opposite presumption: courts will not assume Congress’s intent to foreclose
the President’s authority over national security and foreign affairs unless Congress
has specifically expressed that intent. See, e.g., Jama, 543 U.S. at 348; Egan, 484
U.S. at 530.
Plaintiffs assert that the Government’s interpretation of §§ 1182(f) and
1185(a)(1) would mean there is no limit to the President’s authority to make
immigration policy. Hawaii Br. 28. Whatever outer limits may exist on the
President’s authority under §§ 1182(f ) and 1185(a), however, they are not
implicated by the Proclamation here, which addresses core areas of national
security and foreign relations, and which furthers the INA by ensuring that the
Government has the information needed to determine whether aliens present
national-security or safety risks.

28

B.

THE PROCLAMATION DOES NOT VIOLATE SECTION 1152(a)(1)
1. There Is No Conflict Between the Non-Discrimination
Provision and the President’s Suspension Authorities

The non-discrimination provision does not conflict with the President’s
suspension authorities because the statutes operate in two different spheres.
Sections 1182(f) and 1185(a)(1), along with other grounds in Section 1182(a),
limit the universe of individuals eligible to receive visas, and then § 1152(a)(1)(A)
prohibits discrimination on the basis of nationality within that universe of eligible
individuals.
The legislative history shows that Congress understood the INA to operate
in this manner. The 1965 amendments were designed to eliminate the countryquota system previously in effect, not to limit any of the pre-existing provisions
like §§ 1182(f) or 1185(a)(1) addressing entry or protecting security. See H. Rep.
No. 745, 89th Cong., 1st Sess., at 13 (1965); S. Rep. No. 89-748 at 11 (1965), as
reprinted in 1965 U.S.C.C.A.N. 3328, 3329-30. The history expressly states that
the new immigrant-selection system (now codified in §§ 1151-53) was intended to
operate only as to those otherwise eligible for visas. See H. Rep. No. 745, 89th
Cong., 1st Sess., at 12 (1965); S. Rep. No. 89-748, at 13.
Historical practice also confirms this interpretation. President Carter in 1979
directed the Secretary of State and the Attorney General to adopt “limitations and
29

exceptions” regarding “entry” of “Iranians holding nonimmigrant visas,” Exec.
Order No. 12,172 (Nov. 26, 1979); see also Immigration Laws and Iranian
Students, 4A Op. O.L.C. 133, 140 (1979), and subsequently amended that directive
to make it applicable to all Iranians. Exec. Order No. 12,206 (Apr. 7, 1980).
Although President Carter’s Order itself did not deny or revoke visas to Iranian
nationals by its terms, he simultaneously explained how the new measures would
operate: the State Department would “invalidate all visas issued to Iranian citizens
for future entry into the United States, effective today,” and “w[ould] not reissue
visas, nor w[ould] [it] issue new visas, except for compelling and prove
humanitarian reasons or where the national interest of our own country requires.”7
And that is how the State Department implemented it. See 45 Fed. Reg. 24,436
(Apr. 9, 1980).

Similarly, President Reagan invoked § 1182(f) to suspend

immigrant entry of “all Cuban nationals,” subject to exceptions. Proclamation No.
5517. And the Supreme Court in Sale deemed it “perfectly clear” that § 1182(f )
would authorize a “naval blockade” against illegal migrants from a particular
country. 509 U.S. at 187.8

7

The American Presidency Project, Jimmy Carter, Sanctions Against Iran:
Remarks Announcing U.S. Actions (Apr. 7, 1980), https://goo.gl/4iX168.
8
Even if Plaintiffs were correct that the Government violates § 1152(a)(1)(A) by
denying immigrant visas on the basis of nationality, the remedy would be to enjoin
the Government from refusing to issue visas on the basis of the Proclamation. In
30

2.

In the Event of a Conflict, the President’s Suspension
Authorities Would Prevail

Interpreting § 1152(a)(1)(A) as limiting §§ 1182(f) or 1185(a)(1) would
require concluding that § 1152(a)(1)(A) impliedly repealed those provisions. But
implied repeals are disfavored, and in the event of a conflict between the statutes,
the suspension authorities would prevail.
While § 1152(a)(1)(A) was later-enacted with respect to § 1182(f), that is
not true for § 1185(a)(1), which was modified to its current form in 1978. See
Foreign Relations Authorization Act, Fiscal Year 1979, Pub. L. No. 95-426,
§ 707(a), 92 Stat. 963, 992-93 (1978). Even under Plaintiffs’ approach, then,
§ 1185(a)(1) would prevail over § 1152(a)(1)(A).

Plaintiffs also assert that

§ 1152(a)(1)(A) is “more specific” on the issue of nationality-based discrimination.
But there is no indication that Congress intended a rule governing nondiscrimination in the issuance of visas by consular officers to supersede the
President’s authority to suspend entry. Section 1182(f ) confers special power on
the President to suspend entry of aliens, and that unique grant of authority to the
President himself is more specific and supersedes § 1152(a)(1)(A)’s general rule
governing visa issuance.

no event would the remedy extend to an injunction compelling the Government to
grant individuals entry into the United States.
31

*

*

*

*

If this Court accepted Plaintiffs’ interpretation of §§ 1182(f) and
1152(a)(1)(A) as constraints on the President’s constitutional powers, even in
response to an urgent crisis (e.g., the brink of war with a particular country), then
the statutes would raise grave constitutional questions. This Court should reject
Plaintiffs’ interpretation for that reason alone.
III.

THE
PROCLAMATION
DOES
ESTABLISHMENT CLAUSE
A.

NOT

VIOLATE

THE

THE PROCLAMATION IS CONSTITUTIONAL UNDER MANDEL

1. The Supreme Court in Mandel held that when the Executive gives “a
facially legitimate and bona fide reason” for excluding an alien, “courts will neither
look behind the exercise of that discretion, nor test it by balancing its justification
against the” asserted constitutional rights of U.S. citizens. 408 U.S. at 770.9 This
rule reflects that the Constitution “exclusively” allocates power over the entry of
aliens to the “political branches,” id. at 765 (citation omitted), and that aliens
abroad have no constitutional rights at all regarding entry into the country. See
Fiallo, 430 U.S. at 792-96.

9

Plaintiffs contend that the Ninth Circuit has rejected Mandel’s application to
Establishment Clause claims. Hawaii Br. 30 n.10 (citing Washington v. Trump,
847 F.3d 1151, 1166 (9th Cir. 2017)). Not so. See Washington, 847 F.3d at 1168
(expressly “reserv[ing] consideration” of Plaintiffs’ Establishment Clause
challenge).
32

Mandel compels rejection of Plaintiffs’ Establishment Clause claim. The
Proclamation’s entry restrictions rest on facially legitimate reasons:

both

protecting national security and enhancing the government’s leverage in
persuading foreign governments to share information needed to screen their
nationals. Procl. § 1. The Proclamation also sets forth a bona fide basis for these
reasons: after the worldwide review and diplomatic engagement required by EO-2,
several nations continued to have inadequate information-sharing practices or
otherwise heightened risk factors that warranted entry restrictions.

It further

explains that, based on the Acting Secretary’s recommendations and after
consulting with members of the Cabinet, the President “craft[ed] . . . countryspecific restrictions that would be most likely to encourage cooperation given each
country’s distinct circumstances, and that would, at the same time, protect the
United States until such time as improvements occur.”

Id. § 1(h)(i).

The

Proclamation’s entry restrictions readily satisfy Mandel’s test.
The Supreme Court’s decision in Sessions v. Morales-Santana, 137 S. Ct.
1678, 1693 (2017), describes Mandel’s standard as “minimal scrutiny (rationalbasis review).” Rational-basis review is objective and does not permit probing
government officials’ subjective intent or second-guessing the Executive’s
national-security and foreign-policy determinations. See W. & S. Life Ins. Co. v.
State Bd. of Equalization of Cal., 451 U.S. 648, 671-72 (1981) (rational-basis
33

standard does not ask “whether in fact [a] provision will accomplish its objectives,”
but whether the government “rationally could have believed” that it would do so).
That objective rational-basis standard has particular force here, as courts are
generally “ill equipped to determine the[] authenticity and utterly unable to assess
the[] adequacy” of the Executive’s “reasons for deeming nationals of a particular
country a special threat.” AAADC, 525 U.S. at 491.
2. In any event, Plaintiffs do not and cannot show that the Proclamation’s
stated national-security and foreign-policy rationales are a pretext for a purported
ban of Muslims. Plaintiffs rely on this Court’s prior conclusion that EO-2 was
motivated by religious animus. See Hawaii Br. 31. But the allegations against
EO-2 cannot justify a similar determination against the Proclamation.
Nearly all of the evidence on which this Court relied in examining EO-2
predates the Proclamation by more than a year and therefore fails to take into
account the worldwide review and diplomatic engagement processes that took
place after EO-2’s issuance. These processes combined the efforts of multiple
government agencies and resulted in recommendations from the Acting Secretary
of DHS to the President as to necessary entry restrictions to address inadequate
information-sharing practices and to encourage foreign governments to cooperate
with the United States to address those inadequacies. The processes and the

34

resulting entry restrictions are more tailored and relate to a different set of countries
than those in EO-2.
Plaintiffs cannot plausibly maintain that the numerous government officials
involved in these processes were acting in bad faith or harbored anti-Muslim
animus, or that the Government’s substantial diplomatic efforts were a charade.
B.

THE PROCLAMATION IS VALID UNDER DOMESTIC ESTABLISHMENT
CLAUSE PRECEDENT

Even in the domestic context, a court deciding whether official action
violates the Establishment Clause because of an improper religious purpose looks
only to “the ‘text, legislative history, and implementation of the statute,’ or
comparable official act.” McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 862 (2005).
The court is not to engage in “judicial psychoanalysis of a drafter’s heart of hearts.”
Id. Rather, it is only an “official objective” of favoring or disfavoring religion that
implicates the Establishment Clause. Id.
There is no basis for invalidating the Proclamation under that standard. The
Proclamation’s text does not refer to or draw any distinction based on religion. And
the Proclamation’s operation confirms that it is religion-neutral: it applies tailored
restrictions to eight countries based on detailed findings regarding the nationalsecurity and foreign-policy interests of the United States, and the entry restrictions
apply to certain nationals of those countries without regard to their religion.
35

Plaintiffs assert that an anti-Muslim purpose can be inferred from the
Proclamation’s restriction on entry of certain nationals from six majority Muslim
countries. But the Proclamation omits from its entry restrictions the overwhelming
number of majority-Muslim countries, including Sudan and Iraq, both of which
were previously included. It is neither surprising nor pernicious that those six
majority Muslim countries are included, as five of them were previously identified
by Congress or DHS as countries presenting terrorism-related concerns. See 8
U.S.C. § 1187(a)(12). In addition, the Proclamation applies entry restrictions to
two countries that do not have majority Muslim populations (North Korea and
Venezuela), and a third country that has a substantial (approximately 48 percent)
non-Muslim population (Chad). See CIA, The World Factbook: Africa: Chad.10
Plaintiffs’ assertion also ignores that the entry restrictions in the Proclamation are
customized for each nation. Procl. § 1(h).
As this Court correctly recognized, “past conduct” cannot “forever taint”
future government efforts. Hawaii, 245 F. Supp. 3d at 1236; see also McCreary,
545 U.S. at 874. And the specific sequence of events leading to the issuance of the
Proclamation—especially the recommendations of the Acting Secretary of DHS
after an extensive, multi-agency process—severs any connection between EO-2’s

10

https://www.cia.gov/library/publications/the-world-factbook/geos/cd.html.
36

supposed religious purpose and the Proclamation. Cf. Felix v. City of Bloomfield,
841 F.3d 848, 863 (10th Cir. 2016) (explaining that “curative efforts” can
“neutralize” a previously religious message); Books v. City of Elkhart, 235 F.3d
292, 304 (7th Cir. 2000) (acknowledging that “subsequent history” can
“transform[] [a] religious purpose”).
Comparing the Proclamation to the third in a series of Ten Commandments
displays at issue in McCreary only confirms that the Proclamation does not embody
a religious purpose. McCreary involved displays with explicitly religious content,
whereas the Proclamation has no reference to religion in its terms or its operation.
The McCreary display contained “no context that might have indicated an object
beyond the religious character of the text.” 545 U.S. at 868. In contrast, the
Proclamation explains its secular purposes, and the context in which it was issued
highlights its national-security and foreign-policy objectives.
Lastly, the counties in McCreary never “repudiated” the resolutions
authorizing

the

prior

Ten

Commandments

displays,

which

contained

“extraordinary” references to religion. 545 U.S. at 871. Here, in contrast, since
EO-2’s issuance, the President has, in an official address, praised Islam as “one of
the world’s great faiths,” decried “the murder of innocent Muslims,” and
emphasized that the fight against terrorism “is not a battle between different faiths.”
Washington Post Staff, President Trump’s full speech from Saudi Arabia on global
37

terrorism, Wash. Post, May 21, 2017, https://goo.gl/viJRg2.

Thus, the

Proclamation represents a “genuine change[] in constitutionally significant
conditions,” McCreary, 545 U.S. at 874.
This Court should reject Plaintiffs’ suggestion that President Trump is
forever disabled from regulating immigration from majority-Muslim countries.
IV.

THE REMAINING PRELIMINARY INJUNCTION FACTORS
WEIGH AGAINST RELIEF
Plaintiffs have not demonstrated that “irreparable injury is likely in the

absence of an injunction.” Winter, 555 U.S. at 22 (emphasis omitted). The closest
Plaintiffs come to alleging concrete harm while the Court considers their claims is
their assertion that the Proclamation will prevent or delay their foreign-national
family members from entering the United States. But delay in entry alone does not
amount to irreparable harm. Visa processing times vary widely, and until the aliens
abroad meet the otherwise-applicable visa requirements and seek and are denied a
waiver, they have not received final agency action; their claimed harms are too
“remote” and “speculative” to merit injunctive relief.

Direx Israel, Ltd. v.

Breakthrough Med. Corp., 952 F.2d 802, 812 (4th Cir. 1991).
On the other side of the scales, an injunction would cause direct, irreparable
injury to the government and public interest. “[A]ny time a State is enjoined by a
court from effectuating statutes enacted by representatives of its people, it suffers
38

a form of irreparable injury.” Maryland v. King, 567 U.S. 1301, 1303 (2012)
(Roberts, C.J., in chambers). A fortiori, the same principle applies to a nationalsecurity and foreign-policy judgment of the President. Agee, 453 U.S. at 307; Sale,
509 U.S. at 188. The Court should not interfere with, or second-guess, such
judgments.
V.

A GLOBAL INJUNCTION WOULD BE INAPPROPRIATE
Constitutional and equitable principles require that any injunctive relief be

limited to redressing a plaintiff’s own cognizable injuries. Article III requires that
“a plaintiff must demonstrate standing . . . for each form of relief that is sought.”
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017). “The
remedy” sought therefore must “be limited to the inadequacy that produced the
injury in fact.” Lewis v. Casey, 518 U.S. 343, 357 (1996). Equitable principles
independently require that injunctions “be no more burdensome to the defendant
than necessary to provide complete relief to the plaintiffs.” Madsen v. Women’s
Health Ctr., Inc., 512 U.S. 753, 765 (1994).
Any injunction the Court enters should be limited to relieving the specific
injury of only those Plaintiffs whom the Court determines have a cognizable and
meritorious claim and who will suffer irreparable harm in the absence of an
injunction. For example, the injunction should not extend beyond the Plaintiffs’
identified family members, or identified students or faculty. The claim of a
39

“message” injury from an asserted Establishment Clause violation is not cognizable
at all as a basis for equitable relief, but even that argument provides no basis for
relief for a statutory violation beyond the particular individuals affected. An
injunction also should not extend beyond Section 2 of the Proclamation; nor should
it cover any specific provisions of Section 2 that Plaintiffs do not challenge, such
as the entry restrictions for North Korea and Venezuela. See Hawaii Br. 10 n.4.
The Proclamation’s severability clause compels the same approach. Procl. § 8(a).
CONCLUSION
The Court should deny Plaintiffs’ motion.

40

DATED: October 14, 2017

Respectfully submitted,
CHAD A. READLER
Acting Assistant Attorney General
ELLIOT ENOKI
Acting United States Attorney
EDRIC M. CHING
Assistant United States Attorney
JOHN R. TYLER
Assistant Director, Federal Programs Branch
/s/ Michelle R. Bennett
MICHELLE R. BENNETT (CO Bar. No. 37050)
DANIEL SCHWEI (NY Bar)
Senior Trial Counsel
U.S. Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

41

CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing memorandum complies with the word
limitation specified in Local Rule 7.5(b). The memorandum is set in Times New
Roman 14-point type and, according to the word-count facility of the word
processing system used to produce the memorandum, contains 8,691 words.
Date: October 14, 2017

/s/ Michelle R. Bennett
MICHELLE R. BENNETT
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, N.W.
Washington, DC 20530
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorney for Defendants

CERTIFICATE OF SERVICE
I hereby certify that, on this 14th day of October, 2017, by the methods of
service noted below, a true and correct copy of the foregoing was served on the
following at their last known addresses:
Served Electronically through CM/ECF:
Alexander Bowerman
[e-mail]
Clyde J. Wadsworth
[e-mail]
Colleen Roh Sinzdak
[e-mail]
Deirdre Marie-Iha
[e-mail]
Donna H. Kalama
[e-mail]
Douglas S.G. Chin
[e-mail]
Elizabeth Hagerty
[e-mail]
Kaliko'onalani D. Fernandes [e-mail]
Kevin M. Richardson
[e-mail]
Kimberly T. Guidry
[e-mail]
Mitchell Reich
[e-mail]
Neal Katyal
[e-mail]
Reedy C. Swanson
[e-mail]
Robert T. Nakatsuji
[e-mail]
Sara Solow
[e-mail]
Sundeep Iyer
[e-mail]
Thomas Schmidt
[e-mail]
Yuri Fuchs
[e-mail]
Date: October 14, 2017

/s/ Michelle R. Bennett
MICHELLE R. BENNETT
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave, N.W.
Washington, DC 20530
Tel: [phone]; Fax: [phone]
E-mail: [e-mail]
Attorney for Defendants