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

Filing 205

RESPONSE, by Defendants Elaine C. Duke, Rex Tillerson, Donald J. Trump, U.S. Department of Homeland Security, United States of America, to 195 MOTION for Temporary Restraining Order . (Bennett, Michelle)

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Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 1 of 29 The Honorable James L. Robart 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON STATE OF WASHINGTON; STATE OF CALIFORNIA; STATE OF MARYLAND; COMMONWEALTH OF MASSACHUSETTS; STATE OF NEW YORK; and STATE OF OREGON, 11 12 13 14 15 16 17 18 Plaintiffs, No. 2:17-cv-00141 (JLR) DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER v. DONALD TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; ELAINE C. DUKE, in her official capacity as Acting Secretary of Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State; and the UNITED STATES OF AMERICA, Noted For Consideration: October 26, 2017 Defendants. 19 20 21 22 23 24 25 26 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 2 of 29 1 TABLE OF CONTENTS 2 INTRODUCTION ....................................................................................................................... 1 3 BACKGROUND ......................................................................................................................... 3 4 I. Legal Framework ............................................................................................................. 3 5 II. Executive Order No. 13,780 ............................................................................................ 4 6 III. The President’s Proclamation .......................................................................................... 4 7 A. DHS’s Worldwide Review and Recommendations ............................................. 4 8 B. The President’s Findings and Suspensions of Entry ............................................ 6 9 STANDARD OF REVIEW ......................................................................................................... 7 10 ARGUMENT ............................................................................................................................... 7 11 I. Plaintiffs’ Challenges Are Not Justiciable ....................................................................... 7 12 A. Plaintiffs’ Statutory Challenges Are Not Reviewable ......................................... 7 13 B. Plaintiffs’ Constitutional Claims Are Not Reviewable ........................................ 9 14 II. 15 Plaintiffs’ Statutory Claims Are Not Likely To Succeed .............................................. 10 A. 16 The Proclamation Fits Well Within the President’s Broad Constitutional and Statutory Authority to Suspend Entry of Aliens Abroad ............................ 10 1. 18 The President Has Extremely Broad Discretion to Suspend Entry of Aliens Abroad .................................................................................... 10 2. 17 Under Any Standard, the Proclamation Is Adequately Justified By the President’s National Security and Foreign Affairs Judgments .............................................................................................. 12 19 20 B. 21 1. 23 24 26 C. III. There Is No Conflict Between the Non-Discrimination Provision and the President’s Suspension Authorities ........................................... 15 2. 22 25 The Proclamation Does Not Violate Section 1152(a)(1) ................................... 15 In the Event of a Conflict, the President’s Suspension Authorities Would Prevail ........................................................................................ 17 The Proclamation Does Not Conflict With Other INA Provisions.................... 18 The Proclamation Does Not Violate the Constitution ................................................... 19 A. The Proclamation Is Constitutional Under Mandel ........................................... 19 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - i State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 3 of 29 B. 1 The Proclamation Is Valid Even Apart From Mandel ....................................... 21 2 IV. The Remaining Factors Weigh Against Relief .............................................................. 23 3 V. A Global Injunction Would Be Inappropriate ............................................................... 24 4 CONCLUSION .......................................................................................................................... 24 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - ii State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 4 of 29 1 INTRODUCTION 2 Over the past several months, the Department of Homeland Security (DHS), in 3 consultation with the Department of State and Director of National Intelligence, conducted a 4 worldwide review of foreign governments’ information-sharing practices and risk factors, 5 evaluated each country according to a set of religion-neutral criteria, and identified countries with 6 inadequate information-sharing practices. 7 diplomatically to encourage them to improve their performance. The Acting Secretary of 8 Homeland Security reported the results of this review to the President, recommending that the 9 President impose entry restrictions on nationals from eight countries whose information-sharing 10 practices continued to be inadequate or that otherwise presented special risk factors. After 11 reviewing the recommendations and consulting within the Executive Branch, the President crafted 12 “country-specific restrictions” that, in his judgment, “would be most likely to encourage 13 cooperation given each country’s distinct circumstances, and that would, at the same time, protect 14 the United States until such time as improvements occur.” Pursuant to his broad authority to 15 suspend or restrict the entry of aliens abroad when he deems it in the Nation’s interest, the 16 President issued a Proclamation describing those restrictions and the particular country-conditions 17 justifying them. See Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for 18 Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats, 19 82 Fed. Reg. 45,161 (Sept. 27, 2017). The Secretary of State then engaged countries 20 Plaintiffs have now shown that, no matter how thorough the Government’s process, they 21 will continue to allege that the President’s actions are motivated by animus. Plaintiffs ask the 22 Court to enjoin the Proclamation worldwide, nullifying a formal national-security and foreign- 23 policy directive of the President based on extensive investigations and recommendations of 24 several Cabinet Secretaries. Their request threatens the ability of this or any future President to 25 take necessary steps to protect the Nation. 26 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 1 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 5 of 29 1 The Court need not even address these issues, however, because Plaintiffs’ motion fails at 2 the outset. The relevant provisions of the Proclamation have already been enjoined nationwide. 3 See Hawaii v. Trump, 2017 WL 4639560 (D. Haw. Oct. 17, 2017); IRAP v. Trump, 2017 WL 4 4674314 (D. Md. Oct. 17, 2017), appeal docketed, No. 17-2231 (4th Cir. Oct. 20, 2017). These 5 existing injunctions preclude Plaintiffs from demonstrating actual, imminent irreparable harm 6 justifying a temporary restraining order (TRO). 7 consideration of Plaintiffs’ motion for a TRO against Executive Order No. 13,780, 82 Fed. Reg. 8 13,209 (Mar. 9, 2017) (“EO-2”) in light of injunctions entered in other cases. See ECF No. 164. 9 Plaintiffs’ motion should be denied—or at least stayed—on this basis alone. Indeed, this Court previously stayed 10 To the extent the Court is nonetheless inclined to consider the merits of Plaintiffs’ 11 arguments, their motion should be denied. The Proclamation is amply justified by the President’s 12 constitutional powers and the authority conferred on him by 8 U.S.C. §§ 1182(f) and 1185(a)(1). 13 The President determined that, for countries with inadequate information-sharing practices or 14 other special circumstances, it would be detrimental to the Nation’s interests to allow certain 15 foreign nationals of those countries to enter the United States, because “the United States 16 Government lacks sufficient information to assess the risks they pose,” and because the entry 17 restrictions “are also needed to elicit improved identity-management and information-sharing 18 protocols . . . from foreign governments[.]” 19 determination run afoul of § 1152(a)(1), which does not affect the President’s pre-existing 20 suspension authorities. Procl. § 1(h)(i). Nor does the President’s 21 Likewise, Plaintiffs’ Establishment Clause and equal protection claims are governed by, 22 and fail under, Kleindienst v. Mandel, 408 U.S. 753 (1972), which requires upholding the 23 Executive’s decision to exclude aliens abroad so long as it rests on a “facially legitimate and bona 24 fide reason.” Id. at 770. The Proclamation’s entry restrictions rest squarely on national-security 25 and foreign-policy determinations by the President that are legitimate on their face and supported 26 by extensive findings, and thus, Mandel precludes “look[ing] behind” the President’s rationale. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 2 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 6 of 29 1 Id. Even without regard to Mandel, the Proclamation has nothing to do with religion on its face 2 or in its operation, and Plaintiffs have not demonstrated that the Proclamation—the product of a 3 review by multiple agencies—was motivated by religious animus. 4 Before reaching the merits, though, Plaintiffs’ claims are not justiciable at all. Congress 5 has not authorized review of Plaintiffs’ statutory claims and the plaintiff States have no 6 constitutional rights of their own to assert. Plaintiffs’ motion should therefore be denied. 7 8 BACKGROUND I. LEGAL FRAMEWORK 9 “The exclusion of aliens is a fundamental act of sovereignty” that is both an aspect of the 10 “legislative power” and “inherent in the executive power to control the foreign affairs of the 11 nation.” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950). 12 Under the Immigration and Nationality Act (INA), admission to the United States 13 normally requires a valid visa or other valid travel document. 8 U.S.C. §§ 1181, 1182(a)(7)(A)(i) 14 and (B)(i)(II), 1203. Applying for a visa typically requires an in-person interview and results in 15 a decision by a Department of State consular officer. 8 U.S.C. §§ 1201(a)(1), 1202(h), 1204; 16 22 C.F.R. §§ 41.102, 42.62. Although a visa generally is necessary for admission, it does not 17 guarantee admission; the alien still must be found admissible upon arriving at a port of entry. 18 8 U.S.C. §§ 1201(h), 1225(a). Congress has enabled certain nationals of certain countries to seek 19 temporary admission without a visa under the Visa Waiver Program. 8 U.S.C. §§ 1182, 1187. 20 Building upon the President’s inherent authority to exclude aliens, see Knauff, 338 U.S. 21 at 542, Congress has likewise accorded the President broad discretion to restrict the entry of 22 aliens. Section 1182(f ) of Title 8 authorizes the President to “suspend the entry of all aliens or 23 any class of aliens” “for such period as he shall deem necessary” whenever he finds that such 24 entry “would be detrimental to the interests of the United States.” Section 1185(a)(1) further 25 empowers the President to adopt “reasonable rules, regulations,” “orders,” and “limitations and 26 exceptions” on the entry of aliens. Pursuant to these authorities, President Reagan suspended DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 3 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 7 of 29 1 entry of all Cuban nationals in 1986, and President Carter denied and revoked visas to Iranian 2 nationals in 1979. 3 II. EXECUTIVE ORDER NO. 13,780 4 On March 6, 2017, the President issued Executive Order No. 13,780. EO-2 directed the 5 Secretary of Homeland Security to conduct a global review to determine whether foreign 6 governments provide adequate information about their nationals seeking U.S. visas, EO-2 § 2(a), 7 and to report his findings to the President. 8 During that review, EO-2 imposed a 90-day entry suspension on certain foreign nationals 9 from six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—all of which had been 10 identified by Congress or DHS as presenting heighted terrorism-related concerns. Id. § 2(c). That 11 90-day suspension was preliminarily enjoined by two district courts. See Hawaii v. Trump, 245 12 F. Supp. 3d 1227 (D. Haw. 2017); IRAP v. Trump, 241 F. Supp. 3d 539 (D. Md. 2017). Those 13 injunctions were affirmed in relevant part. See Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017) 14 (per curiam); IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc). 15 The Supreme Court granted certiorari in both cases and partially stayed the injunctions 16 pending its review. Trump v. IRAP, 137 S. Ct. 2080 (2017). After EO-2’s entry suspension 17 expired, the Supreme Court vacated the IRAP injunction as moot. See Trump v. IRAP, 2017 WL 18 4518553 (U.S. Oct. 10, 2017). The Ninth Circuit’s decision also affirmed the injunction of 19 Section 6(a) of EO-2, concerning refugees, which is set to expire on October 24, 2017. 20 III. 21 22 THE PRESIDENT’S PROCLAMATION On September 24, 2017, following completion of the Government’s review and engagement processes, the President signed Proclamation No. 9645. 23 A. 24 The Proclamation describes the extensive, worldwide review of the nation’s vetting 25 procedures that preceded it. First, DHS, in consultation with the Department of State and the 26 Director of National Intelligence, established categories of information needed from foreign DHS’s Worldwide Review and Recommendations DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 4 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 8 of 29 1 governments to enable the United States to assess its ability to make informed decisions about 2 foreign nationals applying for visas. That information “baseline” has three components: 3 4 5 6 7 8 9 10 11 12 (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 nationalidentity 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.” Procl. § 1(c). 13 DHS, in coordination with the Department of State, then collected data on, and evaluated, 14 every foreign country according to these criteria. Out of nearly 200 countries evaluated, the 15 Acting Secretary of DHS identified the information-sharing practices and risk factors of 16 16 countries as “inadequate.” Id. § 1(e). Another 31 countries were found “at risk” of becoming 17 “inadequate.” Id. These preliminary results were submitted to the President. Id. § 1(c). The 18 Department of State then conducted a 50-day engagement period to encourage all foreign 19 governments to improve, which yielded significant gains—29 countries provided travel- 20 document exemplars to combat fraud, and 11 countries agreed to share information on known or 21 suspected terrorists. Id. § 1(f). 22 The Acting Secretary of DHS then submitted a report to the President recommending 23 tailored entry restrictions on certain nationals from seven countries (Chad, Iran, Libya, North 24 Korea, Syria, Venezuela, and Yemen) that continue to be “inadequate” with respect to 25 information-sharing and risk factors. Id. § 1(h)(ii). She also recommended entry restrictions on 26 nationals of Somalia. Id. § 1(i). Although Somalia generally satisfies the information-sharing DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 5 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 9 of 29 1 baseline, it not only “has significant identity-management deficiencies” but “stands apart from 2 other countries in the degree to which its government lacks command and control of its territory.” 3 Id. § 2(h). 4 information-sharing requirements, but in lieu of entry restrictions, recommended additional 5 scrutiny of Iraqi nationals seeking entry because of the United States’ close cooperative 6 relationship with Iraq, the strong United States diplomatic presence in Iraq, the significant 7 presence of United States forces in Iraq, and Iraq’s commitment to combatting ISIS. Id. § 1(g). The Acting Secretary determined that an eighth country (Iraq) did not meet 8 B. 9 After considering the Acting Secretary’s recommendations and consulting with members 10 of his Cabinet, the President issued the Proclamation pursuant to his inherent and statutory 11 authorities, including 8 U.S.C. §§ 1182(f) and 1185(a)(1). The President considered “several 12 factors, including each country’s capacity, ability, and willingness to cooperate with our identity- 13 management and information-sharing policies and each country’s risk factors,” as well as “foreign 14 policy, national security, and counterterrorism goals.” Procl. § 1(h)(i). The President sought to 15 “craft[] those country-specific restrictions that would be most likely to encourage cooperation 16 given each country’s distinct circumstances, and that would, at the same time, protect the United 17 States until such time as improvements occur.” Id. The President’s Findings and Suspensions of Entry 18 For countries that refuse to cooperate regularly with the United States (Iran, North Korea, 19 and Syria), the Proclamation suspends all classes of visas with the exception, for nationals of Iran 20 only, of student (F and M) and exchange visitor (J) nonimmigrant visas. Id. §§ 2(b)(ii), (d)(ii), 21 (e)(ii). 22 information-sharing deficiencies (Chad, Libya, and Yemen), the Proclamation suspends entry 23 only of persons seeking immigrant visas and business, tourist, and business/tourist nonimmigrant 24 (B-1, B-2, B-1/B-2) visas. Id. §§ 2(a)(ii), (c)(ii), (g)(ii). For Somalia, the Proclamation suspends 25 entry of persons seeking immigrant visas and requires additional scrutiny of nationals seeking 26 nonimmigrant visas. Id. § 2(h)(ii). And for Venezuela, the Proclamation suspends entry of For countries that are valuable counter-terrorism partners but nonetheless have DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 6 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 10 of 29 1 “officials of government agencies of Venezuela involved in screening and vetting procedures” 2 and “their immediate family members” on nonimmigrant business and tourist visas. Id. § 2(f)(ii). 3 For each country, the Proclamation summarizes some of the country conditions and inadequacies 4 warranting the restrictions. Id. § 2. The Proclamation also provides for case-by-case waivers to 5 the entry restrictions, id. § 3(c), along with ongoing review to determine whether the restrictions 6 should remain in place, id. § 4. 7 The entry suspensions were effective immediately for foreign nationals previously 8 restricted under EO-2 and the Supreme Court’s stay, but for all other covered persons they were 9 to be effective at 12:01 a.m. EDT on October 18, 2017. Id. § 7. 10 STANDARD OF REVIEW 11 Plaintiffs “must establish that [they are] likely to succeed on the merits, that [they are] 12 likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities 13 tips in [their] favor, and that [the relief] is in the public interest.” Winter v. Nat. Res. Def. Council, 14 Inc., 555 U.S. 7, 20 (2008). 15 16 ARGUMENT I. PLAINTIFFS’ CHALLENGES ARE NOT JUSTICIABLE 17 A. 18 1. The Supreme Court “ha[s] long recognized the power to . . . exclude aliens as a 19 fundamental sovereign attribute exercised by the Government’s political departments largely 20 immune from judicial control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977). “[I]t is not within the 21 province of any court, unless expressly authorized by law, to review the determination of the 22 political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543. PLAINTIFFS’ STATUTORY CHALLENGES ARE NOT REVIEWABLE 23 Courts have distilled from these longstanding principles that the denial or revocation of a 24 visa for an alien abroad “is not subject to judicial review . . . unless Congress says otherwise.” 25 Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C. Cir. 1999). Courts refer to that rule as 26 “the doctrine of consular nonreviewability,” id., but the short-hand label merely reflects the DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 7 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 11 of 29 1 context in which the principle most often arises—challenges to decisions by consular officers 2 adjudicating visa applications. The principle underlying that doctrine applies regardless of the 3 manner in which the Executive denies entry to an alien abroad. It would make no sense to bar 4 review of consular officers’ case-specific determinations while permitting review of decisions by 5 the President that are grounded in sensitive foreign-affairs and national-security determinations. 6 Here, far from authorizing review, Congress has affirmatively precluded it. Congress has 7 not provided for judicial review of decisions to exclude aliens abroad, e.g., 6 U.S.C. § 236(f ), and 8 has forbidden “judicial review” of visa revocations (subject to a narrow exception inapplicable to 9 aliens abroad), 8 U.S.C. § 1201(i). Furthermore, the conclusion is “unmistakable” from history 10 that “the immigration laws ‘preclude judicial review’ of []consular visa decisions.” Saavedra 11 Bruno, 197 F.3d at 1160. The lone time the Supreme Court held that certain aliens present in the 12 United States could seek review of their exclusion orders under the Administrative Procedure Act 13 (APA), Congress abrogated that ruling and limited those aliens to the habeas remedy (which is 14 not available to aliens abroad). See id. at 1157-62 (recounting history). Because even an alien 15 present in the United States cannot invoke the APA to obtain review, then a fortiori neither can 16 aliens abroad, nor States or U.S. citizens acting at their behest. See 5 U.S.C. §§ 701(a)(1), 702(1).1 17 2. Review is unavailable for three additional reasons. First, the APA provides for judicial 18 review only of “final agency action.” 5 U.S.C. § 704. The President’s Proclamation is not 19 “agency action” at all. Franklin v. Massachusetts, 505 U.S. 788, 800-01 (1992). And Plaintiffs 20 identify no students or faculty who have been admitted or offered employment, but who have 21 applied for and been denied a visa, and a waiver, under the Proclamation. Second, Plaintiffs lack 22 a statutory right to enforce. Nothing in the INA gives Plaintiffs a direct right to judicial review, 23 and none of the statutes Plaintiffs invoke confers any rights on third parties like Plaintiffs. Finally, 24 the APA does not apply “to the extent that . . . agency action is committed to agency discretion 25 26 1 The D.C. Circuit’s decision in Abourezk v. Reagan, 785 F.2d 1043, 1050 (D.C. Cir. 1986), does not support reviewability of Plaintiffs’ statutory claims. As the D.C. Circuit subsequently recognized, Abourezk’s reviewability holding critically relied on a statute that has since been amended to eliminate such review. See Saavedra Bruno, 197 F.3d at 1162, 1164. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 8 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 12 of 29 1 by law.” 5 U.S.C. § 701(a)(2). Here, the relevant statutes commit these matters to the President’s 2 unreviewable discretion. See Part II.A.1, infra.2 3 B. 4 Although Congress has not expressly authorized judicial review of Executive decisions to 5 exclude aliens abroad, it has not “clear[ly]” “preclude[d] judicial review” for persons asserting 6 violations of their own constitutional rights. Webster v. Doe, 486 U.S. 592, 603 (1988). Thus, 7 the Supreme Court has twice engaged in limited judicial review when a U.S. citizen contended 8 that the exclusion of an alien abroad violated the citizen’s own constitutional rights. Mandel, 408 9 U.S. 753; Kerry v. Din, 135 S. Ct. 2128 (2015). PLAINTIFFS’ CONSTITUTIONAL CLAIMS ARE NOT REVIEWABLE 10 Here, Plaintiffs cannot assert that the Proclamation violates their own constitutional rights 11 because States do not have rights under the Establishment or Equal Protection Clauses. See, e.g., 12 Zelman v. Simmons-Harris, 536 U.S. 639, 679 n.4 (2002) (Thomas, J., concurring); South 13 Carolina v. Katzenbach, 383 U.S. 301, 323-24 (1966). Plaintiffs allege injuries to their state 14 universities, and tax and tourism revenue. See Pls.’ Br. 5-6, ECF No. 195. But those purported 15 injuries—which are speculative, not actual or imminent—do not stem from the violation of their 16 own constitutional rights. Indeed, they do not even result from application of the Proclamation 17 to the States themselves, but are instead merely indirect effects from the Proclamation’s 18 application to third parties. See McGowan v. Maryland, 366 U.S. 420, 429-30 (1961). 19 Although Plaintiffs also claim quasi-sovereign interests in protecting persons in their 20 States (Pls.’ Br. 7), Plaintiffs have no sovereign or other cognizable interest in regulating or 21 compelling the entry of aliens from abroad in the first instance. States “do[] not have standing as 22 parens patriae to bring an action against the Federal Government” to protect its residents from 23 alleged discrimination. Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 24 610 n.16 (1982). Moreover, “[t]he authority to control immigration—to admit or exclude aliens— 25 26 2 The Ninth Circuit’s preliminary decision in Hawaii is not binding here, see Part II, infra, and, in any event, did not address these fundamental principles of non-reviewability or the existence of a statutory cause of action, see Hawaii, 859 F.3d at 768-69. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 9 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 13 of 29 1 is vested solely in the Federal Government.” Arizona v. United States, 567 U.S. 387, 409-10 2 (2012) (citation omitted). Plaintiffs have no “legally and judicially cognizable” interest, Raines 3 v. Byrd, 521 U.S. 811, 819 (1997), in the federal government’s determination whether to allow an 4 alien abroad to enter. See Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973).3 5 II. PLAINTIFFS’ STATUTORY CLAIMS ARE NOT LIKELY TO SUCCEED 6 Plaintiffs assert that the Ninth Circuit’s Hawaii decision “controls review” of the 7 Proclamation. Pls.’ Br. 8. But that decision was issued in the context of a preliminary injunction, 8 and such decisions generally are not binding “given the haste that is often necessary,” see Univ. 9 of Texas v. Camenisch, 451 U.S. 390, 395 (1981), including with respect to “mixed question[s] of 10 law and fact.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1076 n.5 (9th Cir. 2015). The Ninth 11 Circuit’s statutory analysis in Hawaii was expressly tied to the facts of EO-2: i.e., the particular 12 findings set forth in EO-2, see Hawaii, 859 F.3d at 770-74; and the particular purpose of EO-2 13 and the circumstances that led to its issuance, see id. at 772 n.13. Given that the Proclamation 14 contains different findings and has broader purposes, the Ninth Circuit’s prior decision regarding 15 EO-2 does not control the statutory analysis here. 16 A. 17 THE PROCLAMATION FITS WELL WITHIN THE PRESIDENT’S BROAD AUTHORITY TO SUSPEND ENTRY OF ALIENS ABROAD 1. 18 The President Has Extremely Broad Discretion to Suspend Entry of Aliens Abroad 19 a. As relevant here, 8 U.S.C. § 1182(f) provides the following: 20 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. 21 22 23 24 25 26 3 Nor may Plaintiffs assert third-party standing on behalf of aliens who would seek admission as students, faculty, or tourists. Aliens abroad have no Establishment Clause rights, see United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990), and no constitutional rights at all regarding entry into the country, see Knauff, 338 U.S. at 542. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 10 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 14 of 29 1 This provision grants the President broad authority and confirms his discretion at every turn. 2 Several courts of appeals have recognized that § 1182(f) provides the President with broad power 3 to suspend the entry of aliens. See, e.g., Abourezk, 785 F.2d at 1049 n.2; Mow Sun Wong v. 4 Campbell, 626 F.2d 739, 744 n.9 (9th Cir. 1980); see also Sale v. Haitian Centers Council, Inc., 5 509 U.S. 155, 187 (1993). 6 In addition, 8 U.S.C. § 1185(a)(1) further provides: 7 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[.] 8 9 10 This statutory text likewise confirms the breadth of the President’s authority. This section does 11 not require any predicate findings whatsoever, but simply gives the President authority to restrict 12 entry to the United States according to “such limitations and exceptions as the President may 13 prescribe.” Id.; see Haig v. Agee, 453 U.S. 280, 297 (1981) (construing similar language in 14 §1185(b) as “le[aving] the power to make exceptions exclusively in the hands of the Executive”). 15 b. The plain text of these statutes provides no basis for judicial second-guessing of the 16 President’s determinations about what restrictions to “prescribe” or what restrictions are 17 necessary to avoid “detriment[] to the interests of the United States,” because they commit those 18 matters to his discretion. See Webster v. Doe, 486 U.S. 592, 600 (1988); see also Reno v. Am.- 19 Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) [hereafter “AAADC”] (court are “ill 20 equipped to determine the[] authenticity and utterly unable to assess the[] adequacy” of the 21 Executive’s reasons for excluding particular foreign nationals). 22 c. Historical practice confirms the breadth of and deference owed to the President’s 23 authority. For decades Presidents have restricted entry pursuant to §§ 1182(f) and 1185(a)(1) 24 without detailed public justifications or findings; some have discussed the President’s rationale in 25 one or two sentences that broadly declare the Nation’s interests.4 Executive Order No. 12,807— 26 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). DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 11 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 15 of 29 1 at issue in Sale—contained only a single sentence articulating its justification. See Exec. Order 2 No. 12,807, pmbl. pt. 4 (May 24, 1992) (“There continues to be a serious problem of persons 3 attempting to come to the United States by sea without necessary documentation and otherwise 4 illegally.”). But the Supreme Court expressed no concerns about the adequacy of that finding, 5 instead stating that “[w]hether the President’s chosen method” made sense from a policy 6 perspective was “irrelevant to the scope of his authority” under the statute. Sale, 509 U.S. at 187- 7 88. Similarly, in 1979 when President Carter invoked § 1185(a)(1) to restrict Iranian nationals, 8 the Executive Order contained no express findings and delegated the authority to prescribe 9 restrictions to lower Executive Branch officials. See Exec. Order No. 12,172, § 1-101 (Nov. 26, 10 1979). Yet courts refused to invalidate those restrictions. See Nademi v. INS, 679 F.2d 811, 813- 11 14 (10th Cir. 1982); Yassini v. Crosland, 618 F.2d 1356, 1362 (9th Cir. 1980). 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 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 suspensions under §§ 1182(f) or 1185(a). The President imposed the entry restrictions after reviewing the recommendations of the Acting Secretary of DHS, and her recommendations were created following a global 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.” Procl. § 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 nationalsecurity judgments, and it would be inappropriate for this Court to second-guess them. See Dep’t 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 limitations imposed . . . DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 12 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 16 of 29 1 may be relaxed or removed as soon as possible.” Procl. § 1(h). The utility of entry restrictions 2 as a foreign-policy tool is confirmed by the results of the diplomatic engagement period described 3 in the Proclamation—the prospect of entry restrictions yielded significant improvements in 4 foreign countries’ information-sharing practices. Id. § 1(e)-(g). Like President Carter’s Iranian 5 Order and President Reagan’s Cuban proclamation, these foreign-relations efforts independently 6 justify the Proclamation and yet they are almost wholly ignored by Plaintiffs. See also Kiobel v. 7 Royal Dutch Petroleum Co., 569 U.S. 108, 116 (2013) (noting “the danger of unwarranted judicial 8 interference in the conduct of foreign policy”). 9 b. The Proclamation satisfies the standards the Ninth Circuit applied to EO-2 as well. 10 First, the Ninth Circuit held that EO-2 made “no finding that nationality alone renders 11 entry of this broad class of individuals a heightened security risk to the United States.” Hawaii, 12 859 F.3d at 772. But the Proclamation explains that the entry restrictions have the purpose and 13 effect of “elicit[ing] improved identity-management and information-sharing protocols and 14 practices from foreign governments” going forward. Procl. § 1(h)(i); see id. § 1(b), (e)-(g). The 15 Ninth Circuit itself acknowledged the rationality of distinguishing among “classes of aliens on 16 the basis of nationality” when necessary “as retaliatory diplomatic measures.” Hawaii, 859 F.3d 17 at 772 n.13 (discussing the Iranian and Cuban Presidential actions). 18 In addition, the Proclamation explains that “[s]creening and vetting protocols” play “a 19 critical role” in protecting United States citizens “from terrorist attacks and other public-safety 20 threats,” Procl. § 1(a); that “[i]nformation-sharing and identity-management protocols and 21 practices of foreign governments are important for the effectiveness of th[os]e screening and 22 vetting protocols,” id. § 1(b); that each of the eight countries was determined to have “inadequate” 23 practices under DHS’s baseline criteria or to present other special circumstances, id. § 1(g); and 24 therefore the Proclamation’s restrictions are “necessary to prevent the entry of those foreign 25 nationals about whom the United States Government lacks sufficient information to assess the 26 risks they pose to the United States,” id. § 1(h)(i). These findings necessarily turn on nationality, DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 13 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 17 of 29 1 because it is the inadequacy of the foreign governments’ practices concerning their nationals that 2 creates the risk inherent in those persons’ entry. Id. § 1(b).5 3 Second, the Ninth Circuit faulted EO-2’s use of nationality as over-inclusive because it 4 suspended entry even for “nationals without significant ties to the six designated countries[.]” 5 Hawaii, 859 F.3d at 773. As the Proclamation explains, however, the “practices of foreign 6 governments are important for the effectiveness of the screening and vetting protocols and 7 procedures of the United States,” because these governments “manage the identity and travel 8 documents of their nationals,” and “also control the circumstances under which they provide 9 information about their nationals to other governments.” Procl. § 1(b). Such practices apply to 10 all of a foreign government’s nationals traveling on that country’s passports, regardless of the 11 degree of a foreign national’s connection to his or her country of citizenship. The Proclamation 12 is thus well tailored to its identity-management concerns, as demonstrated by its exclusion of dual 13 nationals of a covered country if they travel on a non-covered country’s passport. Id. § 3(b)(iv). 14 Third, the Ninth Circuit noted that EO-2 did not “make[] any finding that the current 15 screening processes are inadequate.” Hawaii, 859 F.3d at 773. But the Proclamation expressly 16 contains such a finding; the Acting Secretary conducted the worldwide review “to identify 17 whether, and if so what, additional information will be needed from each foreign country to 18 adjudicate an application by a national of that country . . . in order to determine that the individual 19 is not a security or public-safety threat,” Procl. § 1(c), and after being evaluated under that 20 standard, the eight countries here were found to have inadequate information-sharing practices or 21 to present other risks, id. § 1(g), (i). Furthermore, the President found that the status quo was 22 inadequate to encourage greater cooperation from the eight nations. See id. § 1(h)(i). 23 c. Plaintiffs’ motion advocates a degree of scrutiny over the Proclamation even more 24 rigorous than the Ninth Circuit’s—for example, by questioning the logic of removing Iraq “for 25 26 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. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 14 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 18 of 29 1 policy reasons,” and accusing the Proclamation of failing to explain why each category of visitors 2 from each country is restricted. Pls.’ Br. 12. 3 As an initial matter, the features that Plaintiffs focus on are virtues of the Proclamation 4 because they demonstrate its tailored nature. For instance, it is no surprise that the President 5 considered countervailing “policy reasons”—i.e., foreign policy, national security, and 6 counterterrorism goals—before deciding to impose entry restrictions on a country. See Procl. 7 § 1(h)(i). The fact that Iraq, a Muslim-majority country, did not receive entry restrictions for such 8 reasons confirms (rather than undermines) that the Proclamation is based on the national interest. 9 See id. § 1(g). Similarly, the fact that greater restrictions were imposed on countries that refuse 10 to cooperate regularly with the United States (Iran, North Korea, and Syria) than countries that 11 are valuable terrorism partners but nonetheless have information-sharing deficiencies (Chad, 12 Libya, Yemen) again shows the careful, tailored nature of the Proclamation. In short, these 13 differences are not “inconsistencies,” Pls.’ Br. 12, but rather nuanced distinctions—reflecting the 14 obvious reality that different countries present different considerations. 15 Moreover, there is no basis even in the Hawaii decision, much less in 8 U.S.C. §§ 1182(f) 16 and 1185(a), for the type of exacting scrutiny proposed by plaintiffs. Even assuming that some 17 type of review is appropriate, the level of explanation and tailoring Plaintiffs demand cannot be 18 justified. See IRAP, 2017 WL 4674314, at *23. Indeed, Plaintiffs’ challenge to even these 19 narrowest of details within the Proclamation underscores the degree to which they are asking this 20 Court to second-guess the President’s conduct of foreign affairs, contrary to the principle that 21 such matters are “to be largely immune from judicial inquiry or interference.” Regan v. Wald, 22 468 U.S. 222, 242 (1984). 23 24 25 26 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 Plaintiffs’ argument—that § 1152(a)(1)(A) precludes the President from using §§ 1182(f) or 1185 to impose nationality-based restrictions—creates a conflict between those statutes, DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 15 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 19 of 29 1 because nationality-based restrictions would otherwise fall within the plain terms of §§ 1182(f) 2 and 1185. This argument is contrary to the well-settled canon that “when two statutes are capable 3 of co-existence, it is the duty of the courts . . . to regard each as effective.” Radzanower v. Touche 4 Ross & Co., 426 U.S. 148, 155 (1976). Here, there is an easy way to harmonize the statutes 5 because they operate in two different spheres: §§ 1182(f) and 1185(a)(1), along with other grounds 6 in § 1182(a), limit the universe of individuals eligible to receive visas, and then § 1152(a)(1)(A) 7 prohibits discrimination on the basis of nationality within that universe of eligible individuals. 8 The legislative history shows that Congress understood the INA to operate in this manner. 9 The 1965 amendments were designed to eliminate the country-quota system previously in effect, 10 not to limit any of the pre-existing provisions like §§ 1182(f) or 1185(a)(1) addressing entry or 11 protecting security. See H. Rep. No. 745, 89th Cong., 1st Sess., at 13 (1965); S. Rep. No. 89-748 12 at 11 (1965), as reprinted in 1965 U.S.C.C.A.N. 3328, 3329-30. The history expressly states that 13 the new immigrant-selection system (now codified in §§ 1151-53) was intended to operate only 14 as to those otherwise eligible for visas. See H. Rep. No. 745, 89th Cong., 1st Sess., at 12 (1965); 15 S. Rep. No. 89-748, at 13. 16 Historical practice also confirms this interpretation. President Carter in 1979 directed the 17 Secretary of State and the Attorney General to adopt “limitations and exceptions” regarding 18 “entry” of “Iranians holding nonimmigrant visas,” Exec. Order No. 12,172 (Nov. 26, 1979), and 19 subsequently amended that directive to make it applicable to all Iranians. Exec. Order No. 12,206 20 (Apr. 7, 1980). Although President Carter’s Order itself did not deny or revoke visas to Iranian 21 nationals, he simultaneously explained how the new measures would operate: 22 Department would “invalidate all visas issued to Iranian citizens for future entry into the United 23 States, effective today,” and “w[ould] not reissue visas, nor w[ould] [it] issue new visas, except 24 for compelling and proven humanitarian reasons or where the national interest of our own country 25 requires.”6 And that is how the State Department implemented it. See 45 Fed. Reg. 24,436 (Apr. 26 the State 6 The American Presidency Project, Jimmy Carter, Sanctions Against Iran: Remarks Announcing U.S. Actions (Apr. 7, 1980), https://goo.gl/4iX168. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 16 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 20 of 29 1 9, 1980). Similarly, President Reagan invoked § 1182(f) to suspend immigrant entry of “all 2 Cuban nationals,” subject to exceptions. Proclamation No. 5517. And the Supreme Court in Sale 3 deemed it “perfectly clear” that § 1182(f ) would authorize a “naval blockade” against illegal 4 migrants from a particular country. 509 U.S. at 187. 5 The Proclamation is not materially distinguishable from these historical examples. Just as 6 the Iranian and Cuban entry restrictions were “retaliatory diplomatic measures responsive to 7 government conduct directed at the United States,” Hawaii, 859 F.3d at 772 n.13, the 8 Proclamation here responds to foreign governments’ failure to provide requested information to 9 the United States and imposes entry restrictions as leverage to encourage those governments to 10 do so. See Procl. § 1(h)(i). This core foreign-relations purpose also demonstrates that the 11 Proclamation is justified under the President’s “inherent powers.” Hawaii, 859 F.3d at 782 n.21. 12 Thus, there is no conflict with § 1152(a)(1)(A). 13 14 15 16 17 18 19 20 21 22 23 24 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, 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). Moreover, § 1182(f) is more specific within the statutory scheme, because § 1152(a)(1)(A) establishes only a default rule governing non-discrimination in the issuance of visas by consular officers. In contrast, §§ 1182(f) and 1185(a)(1) confer special power on the President to restrict 25 26 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 17 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 21 of 29 1 entry of aliens. That unique grant of authority to the President himself is more specific and 2 supersedes § 1152(a)(1)(A)’s general rule governing visa issuance.7 3 C. 4 Finally, Plaintiffs criticize the Proclamation as “essentially a new piece of immigration 5 legislation” given its “detailed line-drawing” and “ʻextensive and complex’ provisions.” Pls.’ Br. 6 13. 7 Proclamation, not a basis for criticism. And unlike the plaintiffs in Hawaii who alleged that EO- 8 2 conflicted with a specific statutory provision, see 859 F.3d at 782, Plaintiffs’ challenge here is 9 a broadside attack on the Proclamation as a whole, untethered to any specific statutory provision. 10 THE PROCLAMATION DOES NOT CONFLICT WITH OTHER INA PROVISIONS But again, those narrowly tailored country-specific restrictions are a virtue of the Plaintiffs cite no authority justifying such a free-form challenge to the Proclamation. 11 In any event, even if the claim were cognizable, Plaintiffs’ underlying theory is wrong. 12 Although Congress (through the INA) has set the minimum requirements for an alien to gain entry, 13 it has also recognized the President’s authority to impose additional restrictions when he deems 14 appropriate. There is nothing improper about the President supplementing the INA’s minimum 15 requirements, even on issues that Congress has already addressed in some fashion.8 16 Plaintiffs’ contrary theory—that the President is precluded from acting whenever an INA 17 provision addresses the same topic—is particularly ill-suited to the arena of national security and 18 foreign affairs, which involve delicate balancing in the face of ever-changing circumstances, such 19 that the Executive must be permitted to act quickly and flexibly. See Zemel v. Rusk, 381 U.S. 1, 20 17 (1965); Jama v. Immigration & Customs Enf’t, 543 U.S. 335, 348 (2005). For that reason, 21 courts typically assume that, unless specifically expressed, Congress did not intend to foreclose 22 23 24 25 26 7 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 no event would it be proper for the remedy to extend to an injunction compelling the Government to grant individuals entry into the United States. 8 See Knauff, 338 U.S. at 541-42, 545-47 (holding that, although alien would normally have been entitled to a statutory hearing on her exclusion, she could be excluded without a hearing based on President’s Proclamation under the predecessor to § 1185(a)(1)); Abourezk, 785 F.2d at 1049 n.2 (even if Congress chose to exclude only aliens whose activities in the United States would be prejudicial, the President could still use § 1182(f) to suspend aliens whose mere entry would be prejudicial). DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 18 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 22 of 29 1 the President’s authority over national-security and foreign-affairs. See, e.g., Jama, 543 U.S. 2 at 348; Egan, 484 U.S. at 530. Given the breadth of subjects addressed in various INA provisions, 3 Plaintiffs’ argument would severely circumscribe the President’s authority, effectively reading 4 §§ 1182(f) and 1185(a)(1) out of the INA entirely.9 5 III. THE PROCLAMATION DOES NOT VIOLATE THE CONSTITUTION 6 A. 7 1. The Supreme Court in Mandel held that when the Executive gives “a facially legitimate 8 and bona fide reason” for excluding an alien, “courts will neither look behind the exercise of that 9 discretion, nor test it by balancing its justification against the” asserted constitutional rights of 10 U.S. citizens. 408 U.S. at 770. Mandel involved a First Amendment claim, but courts have 11 applied its test to other constitutional claims as well. See, e.g., Fiallo, 430 U.S. at 792-96 (equal 12 protection); Rajah v. Mukasey, 544 F.3d 427, 438 (2d Cir. 2008) (claims alleging discrimination 13 based on “religion, ethnicity, gender, and race”); Washington v. Trump, 858 F.3d 1168, 1179-82 14 (9th Cir. 2017) (Bybee, J., dissenting from denial of reconsideration en banc) (collecting cases). 15 Mandel’s rule reflects that the Constitution “exclusively” allocates power over the entry of aliens 16 to the “political branches,” 408 U.S. at 765 (citation omitted), and that aliens abroad have no 17 constitutional rights at all regarding entry into the country. See Fiallo, 430 U.S. at 792-96.10 THE PROCLAMATION IS CONSTITUTIONAL UNDER MANDEL 18 Mandel compels rejecting Plaintiffs’ Establishment Clause and equal protection claims. 19 The Proclamation’s entry restrictions rest on facially legitimate reasons: both protecting national 20 security and enhancing the government’s leverage in persuading foreign governments to share 21 information needed to screen their nationals. Procl. § 1. The Proclamation also sets forth a bona 22 fide basis for these reasons: after the worldwide review and diplomatic engagement required by 23 24 25 26 9 If the 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. The Court should reject Plaintiffs’ interpretation for that reason alone. 10 Contrary to Plaintiffs’ assertion (Pls.’ Br. 18), the Ninth Circuit has not rejected Mandel’s application to Plaintiffs’ Establishment Clause claim. See Washington v. Trump, 847 F.3d 1151, 1168 (9th Cir. 2017) (expressly “reserv[ing] consideration” of Establishment Clause challenge). And in IRAP, the Fourth Circuit agreed that Mandel’s test applies, although the court applied it incorrectly. See 857 F.3d at 588. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 19 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 23 of 29 1 EO-2, several nations continued to have inadequate information-sharing practices or otherwise 2 heightened risk factors that warranted entry restrictions. It further explains that, based on the 3 Acting Secretary’s recommendations and after consulting with members of the Cabinet, the 4 President “craft[ed] . . . country-specific restrictions that would be most likely to encourage 5 cooperation given each country’s distinct circumstances, and that would, at the same time, protect 6 the United States until such time as improvements occur.” Id. § 1(h)(i). These facially legitimate 7 and bona fide reasons for the Proclamation’s entry restrictions readily satisfy Mandel’s test. 8 2. In its now-vacated decision in IRAP, the Fourth Circuit erroneously determined that 9 Mandel’s “bona fide” requirement permits courts to examine whether the Government’s stated 10 reasons were given in good faith. See 857 F.3d at 590-91. But that understanding of Mandel 11 cannot be squared with subsequent Supreme Court authority, which equates Mandel’s standard 12 with rational-basis review. See Sessions v. Morales-Santana, 137 S. Ct. 1678, 1693 (2017). 13 Rational-basis review is objective and does not permit probing government officials’ subjective 14 intentions or second-guessing national-security and foreign-policy determinations. See W. & S. 15 Life Ins. Co. v. State Bd. of Equalization of Cal., 451 U.S. 648, 671-72 (1981). That standard has 16 particular force here, as courts are generally “ill equipped to determine the[] authenticity and 17 utterly unable to assess the[] adequacy” of the Executive’s “reasons for deeming nationals of a 18 particular country a special threat.” AAADC, 525 U.S. at 491.11 19 In any event, Plaintiffs do not and cannot show that the Proclamation’s stated national- 20 security and foreign-policy rationales were given in bad faith. Plaintiffs cannot plausibly maintain 21 that the many government officials involved in the multi-agency review and diplomatic 22 23 24 25 26 11 The Fourth Circuit based its approach in IRAP on a reference to “bad faith” in the concurrence in Din. IRAP, 857 F.3d at 590-91. But the concurrence did not propose an enormous loophole in Mandel, especially with respect to a formal national-security and foreign-policy determination of the President. It merely hypothesized that, if the government had not identified a factual basis for the consular officers’ decision at issue, the plaintiff might have been able to seek “additional factual details” about the basis of the consular officer’s decision (provided the information is not classified). Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in judgment). In contrast, when the government does identify a factual basis—as it did in Mandel and Din by citing a statutory provision that itself included sufficient factual predicates, and also has done here through the Proclamation’s text—that is the end of the analysis. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 20 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 24 of 29 1 engagement processes preceding the Proclamation were acting in bad faith or harbored anti- 2 Muslim animus. See United States v. Chemical Found., Inc., 272 U.S. 1, 14 (1926) (describing 3 the “presumption of regularity” that attaches to all federal officials’ actions). 4 B. 5 The Establishment and Equal Protection Clauses both require the government to “pursue 6 a course of neutrality toward religion.” Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 7 U.S. 687, 696 (1994). The Proclamation fully comports with that principle. It does not draw 8 “explicit and deliberate distinctions” based on religion. Larson v. Valente, 456 U.S. 228, 246 n.23 9 (1982). To the contrary, it is entirely neutral in terms of religion. THE PROCLAMATION IS VALID EVEN APART FROM MANDEL 10 The Proclamation also was not motivated by a religious purpose. Even in the domestic 11 context, a court deciding whether official action violates the Establishment Clause because of an 12 improper religious purpose looks only to “the ‘text, legislative history, and implementation of the 13 statute,’ or comparable official act.” McCreary Cty. v. ACLU of Ky., 545 U.S. 844, 862 (2005). 14 The court is not to engage in “judicial psychoanalysis of a drafter’s heart of hearts.” Id. Rather, 15 it is only an “official objective” of favoring or disfavoring religion that implicates the Clause. Id. 16 There is no basis for invalidating the Proclamation under that standard either. The 17 Proclamation’s text does not refer to or draw any distinction based on religion. And the 18 Proclamation’s operation confirms that it is religion-neutral: it applies tailored restrictions to 19 eight countries based on detailed findings, and the entry restrictions apply only to certain nationals 20 of those countries without regard to their religion. 21 Plaintiffs assert that an anti-Muslim purpose can be inferred from the Proclamation’s 22 inclusion of six majority-Muslim countries. Pls.’ Br. 15. But the Proclamation omits the 23 overwhelming number of majority-Muslim countries, including Sudan and Iraq, both of which 24 were included in prior entry suspensions. It is neither surprising nor pernicious that those six 25 majority-Muslim countries are included, as five of them were previously identified by Congress 26 or DHS as countries presenting heightened terrorism-related concerns. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 21 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) See 8 U.S.C. U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 25 of 29 1 § 1187(a)(12). In addition, the Proclamation applies entry restrictions to two countries that do 2 not have majority Muslim populations (North Korea and Venezuela), and a third country that has 3 a substantial (approximately 48 percent) non-Muslim population (Chad).12 Plaintiffs’ assertion 4 also ignores that the Proclamation’s entry restrictions are customized for each nation, specifically 5 allowing entry of, for example, Iranian student and exchange visitors and all Libyan 6 nonimmigrants besides those traveling on tourist or business visas. See Procl. §§ 1(h), 2. 7 Plaintiffs rely almost exclusively on the Fourth Circuit’s now-vacated conclusion that EO- 8 2 was motivated by religious animus to argue that the Proclamation was similarly motivated. 9 Thus, Plaintiffs’ purported evidence of improper purpose is largely a rehashing of campaign-trail 10 statements and of informal remarks of the President’s aides about EO-2 and Executive Order No. 11 13,769, 82 Fed. Reg. 8977 (Jan. 27, 2017) (“EO-1). Even if those statements could be considered 12 in the search for official purpose at all (and they cannot, as the Government previously argued), 13 they do not show that the Proclamation’s purpose is religious. 14 “[P]ast actions” cannot “forever taint” future government efforts. McCreary, 545 U.S. at 15 874. Nearly all of the statements on which Plaintiffs rely were made more than a year before the 16 President issued the Proclamation. And none of them address the Proclamation; rather, they are 17 about campaign-trail suggestions that were never adopted, EO-1, or EO-2. Finally, the “specific 18 sequence of events” leading to the issuance of the Proclamation—especially the recommendations 19 of the Acting Secretary after an extensive, multi-agency process—severs any connection between 20 EO-2’s supposed religious purpose and the Proclamation. Id. at 866. 21 Unlike the third Ten Commandments display at issue in McCreary, which “quoted more 22 of the purely religious language of the Commandments than the first two,” 545 U.S. at 872, the 23 Proclamation materially differs from EO-2 in ways that eliminate—rather than add to—any 24 supposed religious message. First, as to process, the Proclamation resulted from a multi-agency 25 review that applied religion-neutral criteria to assess the risks posed by all nations, followed by a 26 12 See CIA, The World Factbook: Africa: Chad, https://www.cia.gov/library/publications/the-worldfactbook/geos/cd.html. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 22 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 26 of 29 1 period of diplomatic engagement. Second, as to substance, the Proclamation applies more tailored 2 entry restrictions to a different set of countries than EO-1 or EO-2; among other things, majority 3 Muslim countries like Sudan and Iraq have been removed, while non-majority Muslim countries 4 like North Korea and Venezuela have been added. The President’s decision to require a neutral, 5 worldwide review itself demonstrates that any supposed prior taint has been neutralized, as do the 6 significant substantive differences between the Proclamation and EO-1 or EO-2. 7 Indeed, the Proclamation is more like the Maryland Sunday closing laws at issue in 8 McGowan. Despite acknowledging that the laws were originally enacted for a religious purpose, 9 the Supreme Court determined they no longer retained their religious character because they had 10 “undergone extensive changes from the[ir] earliest form.” 366 U.S. at 431. The Court noted the 11 newer Sunday closing laws were “not simply verbatim re-enactments of their religiously oriented 12 antecedents.” Id. at 448. Moreover, although the new laws retained references to the “Sabbath” 13 and the “Lord’s day,” id. at 445, the Court found it compelling that the laws’ more recent 14 exemptions, which allowed for some activities on Sunday, suggested their purpose was providing 15 a day for rest rather than religion, id. at 448. The transformations in the Proclamation are even 16 more extensive. Not only does it omit any reference to religion whatsoever, but it provides for 17 tailored, country-specific restrictions that, like the exemptions in McGowan, evidence its national- 18 security and foreign-policy origins and justifications. 19 “genuine change[] in constitutionally significant conditions.” McCreary, 545 U.S. at 874. 20 IV. The Proclamation thus represents a THE REMAINING FACTORS WEIGH AGAINST RELIEF 21 Plaintiffs cannot possibly demonstrate irreparable harm because they are already protected 22 by the two nationwide injunctions currently in place. See supra p. 2. Even absent those 23 injunctions, however, delay in entry alone does not amount to irreparable harm. Until aliens 24 abroad meet the otherwise-applicable visa requirements and seek and are denied a waiver, they 25 have not received final agency action and their claimed harms are too remote and speculative to 26 merit injunctive relief. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 23 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 27 of 29 1 On the other side of the scales, an injunction would cause direct, irreparable injury to the 2 government and public interest. “[A]ny time a State is enjoined by a court from effectuating 3 statutes enacted by representatives of its people, it suffers a form of irreparable injury.” Maryland 4 v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers). A fortiori, the same principle 5 applies to a national-security and foreign-policy judgment of the President. Agee, 453 U.S. at 6 307; Sale, 509 U.S. at 188. The Court should not interfere with, or second-guess, such judgments. 7 V. A GLOBAL INJUNCTION WOULD BE INAPPROPRIATE 8 Constitutional and equitable principles require that injunctive relief be limited to 9 redressing a plaintiff’s own cognizable injuries. See Lewis v. Casey, 518 U.S. 343, 357 (1996); 10 Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994). The Proclamation’s severability 11 clause compels the same approach. Procl. § 8(a). Thus, any injunction the Court enters should 12 be limited to those aliens whose denial of entry the Court determines will impose on Plaintiffs a 13 cognizable and irreparable harm.13 14 In IRAP, the Supreme Court stayed the injunctions against EO-2 as to aliens who lack a 15 credible claim of a bona fide relationship with a U.S. person or entity. See 137 S. Ct. at 2088-89. 16 The Court did not conclude that similar relief was required in all circumstances, and carefully 17 tailored its stay to the equities in that case. This case is very different for the reasons described 18 above, and the equitable balancing requires following the ordinary rule of plaintiff-specific relief. 19 CONCLUSION 20 The Court should deny Plaintiffs’ motion for a temporary restraining order. 21 22 23 24 25 26 13 Although Plaintiffs request an injunction as to Section 1(g) of the Proclamation, their motion does not address that section specifically—either as to standing or the merits. Indeed, additional screening is not a suspension of entry under 8 U.S.C. § 1182(f). Moreover, Iraqi nationals have been subject to additional screening since EO-2’s issuance, but Plaintiffs have never before sought to challenge it. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 24 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 28 of 29 1 2 3 4 5 6 7 8 9 10 11 DATED: October 23, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JENNIFER D. RICKETTS Director, Federal Programs Branch JOHN R. TYLER Assistant Director, Federal Programs Branch /s/ Michelle R. Bennett MICHELLE R. BENNETT DANIEL SCHWEI Senior Trial Counsel U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 Tel: (202) 305-8902 Fax: (202) 616-8470 Email: michelle.bennett@usdoj.gov 12 13 Attorneys for Defendants 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 25 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902 Case 2:17-cv-00141-JLR Document 205 Filed 10/23/17 Page 29 of 29 1 2 CERTIFICATE OF SERVICE I hereby certify that, on October 23, 2017, a copy of the foregoing document was 3 electronically filed with the Clerk of the Court using the CM/ECF system which will send 4 notification of such filing to all counsel of record. 5 DATED this 23rd day of October, 2017. 6 /s/ Michelle R. Bennett MICHELLE R. BENNETT 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ TRO MOTION - 26 State of Washington, et al. v. Trump, et al., No. 2:17-cv-00141 (JLR) U.S. DEPARTMENT OF JUSTICE 20 Massachusetts Ave., NW Washington, DC 20530 Tel: (202) 305-8902

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