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No. 17-1351

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, a project of the Urban Justice
Center, Inc., on behalf of itself; HIAS, INC., on behalf of itself and its clients; MIDDLE EAST
STUDIES ASSOCIATION OF NORTH AMERICA, INC., on behalf of itself and its members;
MUHAMMED METEAB; PAUL HARRISON; IBRAHIM AHMED MOHOMED; JOHN
DOES #1 & 3; JANE DOE #2,
Plaintiffs – Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; DEPARTMENT
OF HOMELAND SECURITY; DEPARTMENT OF STATE; OFFICE OF THE DIRECTOR
OF NATIONAL INTELLIGENCE; JOHN F. KELLY, in his official capacity as Secretary of
Homeland Security; REX W. TILLERSON, in his official capacity as Secretary of State;
DANIEL R. COATS, in his official capacity as Director of National Intelligence,
Defendants – Appellants.
On Appeal from the United States District Court
for the District of Maryland (8:17-cv-00361-TDC)

MOTION OF DEFENDANTS-APPELLANTS FOR
A STAY PENDING EXPEDITED APPEAL

JEFFREY B. WALL
Acting Solicitor General
EDWIN S. KNEEDLER
Deputy Solicitor General

CHAD A. READLER
Acting Assistant Attorney General
ROD J. ROSENSTEIN
United States Attorney
AUGUST E. FLENTJE
Special Counsel to the Assistant Attorney
General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys, Appellate Staff
Civil Division, Room 7241
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 353-2689

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TABLE OF CONTENTS
Page
INTRODUCTION .................................................................................................... 1
ARGUMENT ............................................................................................................ 2
I.

The Balance Of Harms Weighs Strongly In Favor Of A Stay ....................... 2
A.

The District Court’s Injunction Imposes Serious, Irreparable
Harm On The Government And The Public .........................................2

B.

A Brief Stay Pending An Expedited Appeal Would Not Impose
Any Substantial Harm On These Plaintiffs .........................................10

II.

The Government Is Likely To Prevail On The Merits ................................. 15

III.

The Nationwide Injunction Is Improper ....................................................... 18

CONCLUSION ....................................................................................................... 23
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES
Cases ............................................................................................................... Page(s)
Adams v. Vance,
570 F.2d 950 (D.C. Cir. 1978)................................................................................9
Allen v. Wright,
468 U.S. 737 (1984) .............................................................................................14
Chi. & S. Air Lines v. Waterman S.S. Corp.,
333 U.S. 103 (1948) ...............................................................................................6
City of Los Angeles v. Lyons,
461 U.S. 95 (1983) ........................................................................................ 20, 21
Comm. on the Judiciary of the U.S. House of Representatives v. Miers,
542 F.3d 909 (D.C. Cir. 2008)..............................................................................10
Consolidation Coal Co. v. Disabled Miners of S. W. Va.,
442 F.2d 1261 (4th Cir. 1971) ..............................................................................20
Dep’t of the Navy v. Egan,
484 U.S. 518 (1988) ...............................................................................................6
DKT Memorial Fund v. Agency for Int’l Dev.,
887 F.2d 275 (D.C. Cir. 1989)..............................................................................13
Franklin v. Massachusetts,
505 U.S. 788 (1992) .............................................................................................18
Ga.-Pac. Consumer Prods. LP v. von Drehle Corp.,
781 F.3d 710 (4th Cir. 2015) ................................................................................20
Haig v. Agee,
453 U.S. 280 (1981) ...............................................................................................6
Hilton v. Braunskill,
481 U.S. 770 (1987) ...............................................................................................1
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) ...................................................................................................6

ii

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INS v. Legalization Assistance Project,
510 U.S. 1301 (1993) .............................................................................................9
Kentuckians for the Commonwealth, Inc. v. Rivenburgh,
317 F.3d 425 (4th Cir. 2003) ......................................................................... 20, 21
Kleindienst v. Mandel,
408 U.S. 753 (1972) ...................................................................................... 14, 17
Lewis v. Casey,
518 U.S. 343 (1996) ...................................................................................... 19, 20
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .............................................................................................11
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) .............................................................................................20
Maryland v. King,
567 U.S. 1301 (2012) .............................................................................................7
McCreary County v. ACLU,
545 U.S. 844 (2005) ...................................................................................... 17, 18
Mississippi v. Johnson,
71 U.S. (4 Wall.) 475 (1867) ................................................................................18
Moss v. Spartanburg Cty. Sch. Dist. Seven,
683 F.3d 599 (4th Cir. 2012) ......................................................................... 14, 15
Nat’l Audubon Soc’y v. Dep’t of Navy,
422 F.3d 174 (4th Cir. 2005) ..................................................................................9
In re Navy Chaplaincy,
534 F.3d 756 (D.C. Cir. 2008)................................................................. 13, 14, 15
New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co.,
434 U.S. 1345 (1977) .............................................................................................7
Newdow v. Lefevre,
598 F.3d 638 (9th Cir. 2010) ................................................................................14

iii

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Nixon v. Fitzgerald,
457 U.S. 731 (1982) ...............................................................................................8
Nken v. Holder,
556 U.S. 418 (2009) ...............................................................................................1
O Centro Espirita Beneficente Uniao de Vegetal v. Ashcroft,
314 F.3d 463 (10th Cir. 2002) ................................................................................7
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) ...............................................................................................7
Santa Fe Indep. Sch. Dist. v. Doe,
530 U.S. 290 (2000) .............................................................................................18
Schweiker v. McClure,
452 U.S. 1301 (1981) ...........................................................................................10
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ...............................................................................................7
United States v. Salerno,
481 U.S. 739 (1987) .............................................................................................19
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) .............................................................................................13
Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981) .............................................................................................20
Va. Soc’y for Human Life, Inc. v. FEC,
263 F.3d 379 (4th Cir. 2001) ......................................................................... 20, 21
Valley Forge Christian Coll. v. Ams. United for Separation
of Church & State, Inc.,
454 U.S. 464 (1982) ...................................................................................... 14, 21
Washington v. Trump,
No. 17-35105 (9th Cir. Mar. 17, 2017) ......................................................... 6, 7, 8
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ...............................................................................................7

iv

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Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ...........................................................................................7
Statutes:
Immigration and Nationality Act:
8 U.S.C. § 1152(a)(1)(A) ......................................................................................16
8 U.S.C. § 1152(a)(1)(B) ......................................................................................16
8 U.S.C. § 1182(a)(7)(B)(iv) ..................................................................................4
8 U.S.C. § 1182(f) ........................................................................................... 3, 16
8 U.S.C. § 1185(a) ........................................................................................... 3, 16
8 U.S.C. § 1187(a)(12) ...........................................................................................4
8 U.S.C. § 1187(a)(12)(A)(i)-(ii)............................................................................4
8 U.S.C. § 1187(a)(12)(D)(i)-(ii)............................................................................4
8 U.S.C. § 1201(g) ................................................................................................16
Regulations:
Executive Order No. 13,780 (Mar. 6, 2017),
82 Fed. Reg. 13,209 (Mar. 9, 2017) ............................................................. passim
Other Authorities:
Dep’t of Homeland Sec., DHS Announces Further Travel Restrictions
for the Visa Waiver Program (Feb. 18, 2016), https://www.dhs.gov/
news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiverprogram ...................................................................................................................4
MESA, 2017 Annual Meeting,
http://www.mesana.org/annual-meeting/index.html ............................................11
U.S. Dep’t of State, County Reports on Terrorism 2015 (June 2016),
https://www.state.gov/documents/organization/258249.pdf ..................................4

v

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INTRODUCTION
The decision below is extraordinary: it enjoins nationwide an action taken by
the President of the United States at the height of his powers. Consistent with his
constitutional and express statutory authority, the President issued Executive Order
No. 13,780 (Mar. 6, 2017). Section 2(c) of that Order temporarily suspends the entry
of foreign nationals from six countries that present heightened terrorism-related risks
(Iran, Syria, Sudan, Libya, Somalia, and Yemen), subject to case-by-case waivers
for undue hardship.

Section 2(c) explicitly rests on the President’s broad

constitutional and statutory authority over the fields of national security, foreign
relations, and immigration. Although Section 2(c) is facially neutral with respect to
religion, the district court nevertheless enjoined it under the Establishment Clause,
based primarily on campaign statements by the President and comments by his
advisors.
All of the traditional factors point in favor of a stay of that injunction pending
expedited appeal. Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The balance of
harms tips sharply in favor of a stay: barring effectuation of the President’s
judgment that Section 2(c) is warranted to protect the Nation’s safety threatens the
interests of the government and the public (which merge here, Nken v. Holder,
556 U.S. 418, 435 (2009)).

By contrast, plaintiffs have not identified any

meaningful injury that they personally would incur if the Order’s 90-day suspension

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of entry for certain foreign nationals from six countries goes into effect, let alone
any substantial injury if the Order is merely allowed to take effect during the brief
period of an expedited appeal. The government also has a strong likelihood of
success on the merits of plaintiffs’ statutory and constitutional challenges.
Accordingly, this Court should stay the district court’s injunction in its
entirety pending final disposition of the appeal of that injunction’s validity and
scope. At a minimum, however, a partial stay is appropriate because the district
court’s nationwide injunction is vastly overbroad and sweeps far beyond any
arguable harm to plaintiffs. Article III and principles of equity require more tailored
relief: implementation of Section 2(c) should not be blocked across the entire
country, based on the putative injuries of only a few individual plaintiffs (who seek
the admission of aliens abroad, who themselves lack any constitutional or statutory
right to entry). For those reasons, the government respectfully requests that this
Court enter a stay pending this expedited appeal.
ARGUMENT
I.

The Balance Of Harms Weighs Strongly In Favor Of A Stay
A.

The District Court’s Injunction Imposes Serious, Irreparable
Harm On The Government And The Public

A district court has set aside the President’s considered judgment of how to
protect the Nation.

It did so notwithstanding that the President’s action was

authorized by Act of Congress; was informed by the advice of the Cabinet officials
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responsible for legal, national security, and immigration matters; and drew on earlier
steps by Congress and the Executive designating the countries at issue based on
substantial terrorism concerns.
1.

Consistent with the President’s broad constitutional authority over

foreign affairs and national security, Congress expressly authorized the President to
restrict or suspend entry of any class of aliens whenever he finds that such entry
would be detrimental to the interests of the country. 8 U.S.C. §§ 1182(f), 1185(a).
The President exercised that authority here, in consultation with the Secretary of
Homeland Security and the Attorney General, to address a national-security risk. In
light of evidence that “some of those who have entered the United States through
our immigration system have proved to be threats to our national security,” the
President determined that it was necessary to conduct an immediate review of the
adequacy of the Nation’s screening and vetting procedures to detect terrorists. Order
§§ 1(h), 2(a)-(b).
To facilitate that important review, the President ordered a temporary pause
on entry of nationals from six countries that had previously been “identified as
presenting heightened concerns about terrorism and travel to the United States” by
Congress or the Executive in the context of the Visa Waiver Program. Order §§ 1(a),
(b)(i), (d)-(f), 2(c).

Congress created that Program to enable nationals of

participating countries to seek temporary admission for tourism or certain business
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purposes without a visa. 8 U.S.C. §§ 1182(a)(7)(B)(iv), 1187. But Congress later
excluded individuals with connections to particular countries from travel under the
Program. Id. § 1187(a)(12). In 2015, Congress excluded from travel under the
Program individuals who are dual nationals of or recent visitors to Iraq and Syria
(where “[t]he Islamic State of Iraq and the Levant (ISIL) * * * maintain[s] a
formidable force”) or countries designated by the Secretary of State as state sponsors
of terrorism (currently Iran, Sudan, and Syria).1

Id. § 1187(a)(12)(A)(i)-(ii).

Congress also authorized the Department of Homeland Security (DHS) to designate
additional countries of concern, such as those that are “safe haven[s] for terrorists”
or have a “significant presence” of “foreign terrorist organization[s],” id.
§ 1187(a)(12)(D)(i)-(ii), and in February 2016 DHS excluded recent visitors to
Libya, Somalia, and Yemen from travel under the Program.2
Drawing on these earlier designations by Congress and the Executive, the
Order imposed a 90-day suspension of entry of nationals from six of those countries:
Iran, Libya, Somalia, Sudan, Syria, and Yemen. Order §§ 2(c), 3(a)-(c). As the
Order explains, each presents “heightened concerns about terrorism and travel to the
United States,” because each one “is a state sponsor of terrorism, has been

1
2

https://www.state.gov/documents/organization/258249.pdf.

https://www.dhs.gov/news/2016/02/18/dhs-announces-further-travelrestrictions-visa-waiver-program.
4

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significantly compromised by terrorist organizations, or contains active conflict
zones.” Id. § 1(b)(i), (d)-(e). The Order details specific concerns regarding each
country that may increase the risk that terrorist operatives or sympathizers from
those nations will travel to the United States and may “diminish[] the foreign
government’s willingness or ability” to provide information necessary to detect
potential threats. Id. § 1(d)-(e).
The President found that continued entry from those countries while the
review is ongoing posed an “unacceptably high” “risk” of “erroneously permitting
entry” of foreign nationals seeking to do this Nation harm. Order § 1(f). The Order
therefore imposes “a temporary pause on the entry of nationals from [those
countries]” in order to facilitate a re-assessment of “current screening and vetting
procedures.” Id. §§ 1(f), 2(a)-(b). But this temporary suspension does not apply, for
example, to lawful permanent residents of the U.S. or aliens who are inside the
country on the Order’s effective date. Id. § 3(a)(i), (b)(i). In addition, it expressly
provides for case-by-case waivers, permitting aliens who otherwise would be subject
to the suspension to enter if a consular officer concludes that “denying [the alien]
entry during the suspension period would cause undue hardship” and “entry would
not pose a threat to national security and would be in the national interest.” Id.
§ 3(c). The Order includes a nonexhaustive list of examples where waivers may be
appropriate. Id.
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2.

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The district court’s injunction barring any enforcement of Section 2(c)

undermines the President’s constitutional and statutory duty to protect the national
interest and national security. “[N]o governmental interest is more compelling than
the security of the Nation,” and “the Government’s interest in combatting terrorism
is an urgent objective of the highest order.” Haig v. Agee, 453 U.S. 280, 307 (1981);
Holder v. Humanitarian Law Project (HLP), 561 U.S. 1, 28 (2010). The President’s
assessment of threats to that interest deserves the greatest deference. See HLP,
561 U.S. at 33-34; Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111
(1948).

And that is particularly true for Section 2(c) because it reflects the

President’s “[p]redictive judgment[]” regarding a specific national-security risk. See
Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988). When the Executive adopts
“a preventive measure * * * in the context of international affairs and national
security,” the government “is not required to conclusively link all the pieces in the
puzzle before [courts] grant weight to its empirical conclusions.” HLP, 561 U.S. at
35.

By forbidding implementation of Section 2(c) nationwide, the injunction

undermines the President’s constitutional and statutory responsibility to safeguard
the Nation’s security and intrudes on the political branches’ constitutional
prerogatives.
The injunction also causes irreparable injury by invalidating an action taken
at the height of the President’s authority. See Washington v. Trump, No. 17-35105,
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slip op. at 1-3 (9th Cir. Mar. 17, 2017) (Bybee, J., dissenting from the denial of
rehearing en banc) (Washington Bybee Dissent). “[T]he President has unique
responsibility” over “foreign and military affairs.” Sale v. Haitian Ctrs. Council,
Inc., 509 U.S. 155, 188 (1993). Rules “concerning the admissibility of aliens” also
“implement[] an inherent executive power.”
Shaughnessy, 338 U.S. 537, 542 (1950).

United States ex rel. Knauff v.

And because “the President act[ed]

pursuant to an express * * * authorization of Congress, his authority is at its
maximum, for it includes all that he possesses in his own right plus all that Congress
can delegate.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2083-84
(2015) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952)
(Jackson, J., concurring)).
The district court’s injunction overriding the President’s judgment thus
necessarily imposes irreparable harm. Even a single State “suffers a form of
irreparable injury” “[a]ny time [it] is enjoined by a court from effectuating statutes
enacted by representatives of its people.” Maryland v. King, 567 U.S. 1301, 1303
(2012) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin
W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)); see, e.g.,
O Centro Espirita Beneficente Uniao de Vegetal v. Ashcroft, 314 F.3d 463, 467
(10th Cir. 2002). A fortiori, the injunction against the Order here imposes irreparable

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injury on the President and the public given “the singular importance of [his] duties”
to the entire Nation. Nixon v. Fitzgerald, 457 U.S. 731, 751 (1982).
3.

The district court acknowledged that it “should afford deference to

national security and foreign policy judgments of the Executive Branch,” and
disavowed any intention to “second-guess the conclusion that national security
interests would be served by the” entry suspension. Op. 35. Yet the court proceeded
to do just that. The court opined that defendants “ha[d] not shown, or even asserted,
that national security cannot be maintained without an unprecedented six-country
travel ban,” and the Order itself “does not explain specifically why this
extraordinary, unprecedented action is the necessary response to the existing risks.”
Op. 36-37, 40.

To the contrary, the Order sets forth in detail the facts and

considerations underlying the President’s risk assessment. Order § 1(d)-(f), (h)-(i).
The district court’s conclusion that the Order’s stated reasons are insufficient is at
bottom a disagreement with the President’s predictive national-security judgment.
The district court also expressed doubt that the Order’s suspension was
actually needed because this measure “has not been deemed necessary at any other
time in recent history.” Op. 40. But the President was entitled to weigh those risks
himself and to strike a different balance than his predecessors. Washington Bybee
Dissent 21 (“The President’s actions might have been more aggressive than those of
his predecessors, but that was his prerogative.”).
8

Congress and the previous

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Administration decided to exclude from travel under the Visa Waiver Program
certain aliens with ties to six countries designated because of heightened terrorism
concerns. The current Administration has decided to go further and temporarily
suspend the entry of nationals of those countries (subject to case-by-case waivers)
while the Secretary of Homeland Security, in consultation with the Secretary of State
and the Director of National Intelligence, reviews the Nation’s current vetting
procedures. The President is entitled to make his own assessment as to the adequacy
of vetting procedures and what level of national-security risk is acceptable.
4.

The harm caused by the injunction to the government and public

interest amply justifies a stay. Courts have vacated injunctions on appeal in light of
similar concerns. See, e.g., Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174,
204-07 (4th Cir. 2005) (invoking separation of powers concerns in vacating
preliminary injunction whose scope impinged on national security interests); Adams
v. Vance, 570 F.2d 950, 954 (D.C. Cir. 1978) (per curiam) (vacating preliminary
injunction that directed action by the Secretary of State in foreign affairs, which
“deeply intrude[d] into the core concerns of the executive branch”). More generally,
courts and Justices have repeatedly granted stays of injunctions to prevent a
significant breach of inter-branch comity. See, e.g., INS v. Legalization Assistance
Project, 510 U.S. 1301, 1305-06 (1993) (O’Connor, J., in chambers) (staying
injunction because it likely was “not merely an erroneous adjudication of a lawsuit
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between private litigants, but an improper intrusion by a federal court into the
workings of a coordinate branch of the Government”); Schweiker v. McClure,
452 U.S. 1301, 1303 (1981) (Rehnquist, J., in chambers); Comm. on the Judiciary
of the U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008)
(per curiam). The district court’s injunction similarly should be stayed pending
appeal.
B.

A Brief Stay Pending An Expedited Appeal Would Not
Impose Any Substantial Harm On These Plaintiffs

By contrast, plaintiffs face no substantial harm if the district court’s injunction
is stayed. Indeed, the plaintiffs have identified no immediate injury that is likely to
occur during the 90-day period of the suspension under Section 2(c), much less
during the shorter period of the stay.
1.

As for the three organizational plaintiffs, the district court did not

identify any of them that would suffer even a cognizable Article III injury—let alone
substantial harm—as a result of Section 2(c). See Op. 12-18 (addressing standing of
individual plaintiffs only). On that score, the court was correct. Two of the
organizational plaintiffs—the International Refugee Assistance Project (IRAP) and
HIAS, Inc.—have asserted claims regarding other provisions of the Order addressing
refugees, but the district court declined to enjoin those provisions, Op. 40-41, and
they are not at issue in this appeal. The third organization, the Middle East Studies
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Association (MESA), alleged that some unspecified members might be prevented
by Section 2(c) from traveling to the United States to attend MESA’s annual
meeting. But that meeting is not scheduled until November 2017, well after Section
2(c)’s 90-day suspension expires in early June.3 MESA further alleged that one of
its members has plans to travel to the United States at some other unspecified future
time, but it has not shown with specificity that this member has any “concrete plans”
to do so during the suspension. Lujan v. Defenders of Wildlife, 504 U.S. 555, 564
(1992).
2.

As for the six individual plaintiffs, they too will suffer no concrete,

substantial harm if the district court’s injunction is stayed. Like IRAP and HIAS,
two of the individual plaintiffs, Muhammed Meteab and Ibrahim Mohomed,
challenge the Order’s provisions addressing refugees and claim that those provisions
will prevent their family members from being admitted as refugees. Again, because
the district court enjoined only Section 2(c)’s entry suspension, not the refugee
provisions, staying the injunction will not affect these two plaintiffs.
The remaining four plaintiffs assert that Section 2(c) will injure them by
preventing or delaying entry of their foreign-national relatives seeking visas. But
none of those plaintiffs has shown any imminent, substantial harm during the

3

http://www.mesana.org/annual-meeting/index.html.
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90-day pause on entry. One of the plaintiffs, Paul Harrison, seeks entry of his Iranian
fiancé. As defendants informed the district court, however, his claim appears to be
moot. D. Ct. Doc. 151, 3/16/17 Tr. 30-31, 34. We are informed by the State
Department that the fiancé’s visa was issued on March 15, 2017, and subsequently
collected. In short, the district court properly did not find that Harrison has standing,
much less imminent injury.
The other three plaintiffs who assert that Section 2(c) will deny visas to their
foreign relatives—the wives of John Doe #1 and John Doe #3, and the sister of Jane
Doe #2—do not have any substantial injury because any possible harm lacks
imminence and is speculative. Although Section 2(c) imposes a 90-day suspension
of entry for certain nationals of six countries, it does not suspend consideration of
visa applications. And it is far from certain that any of the relatives otherwise would
be found eligible for and receive a visa during this appeal’s pendency—facts
plaintiffs should have been required to show in order to obtain injunctive relief.
D. Ct. Dkt. 95-4 ¶¶5-6; 95-5 ¶5; 95-7 ¶10. Plus, to the extent any of their visa
adjudications is imminent, the waiver process could well provide the very relief they
seek. The Order specifically contemplates the possibility of waivers for “close
family member[s].” Order § 3(c)(iv). The waiver process is integrated into the visaadjudication procedure, and plaintiffs have not shown that it will cause any material
delay. A preliminary injunction to redress imminent harm is unnecessary—and thus
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staying the district court’s injunction pending appeal is especially appropriate—
unless and until those plaintiffs’ relatives are found eligible for a visa but denied a
waiver.
3.

The district court did not actually identify any concrete injury Section

2(c) would cause to any of these plaintiffs. It reasoned instead that Establishment
Clause violations are per se irreparable injury. Op. 38-39. But that principle does
not excuse the predicate requirement that a plaintiff must identify a constitutionally
cognizable injury that he himself is likely to suffer, not one inflicted upon a third
party. The cases recognizing that an asserted constitutional violation supports
irreparable harm have thus emphasized that a plaintiff must still first identify a
specific injury to himself to establish standing. See In re Navy Chaplaincy, 534 F.3d
756, 763 (D.C. Cir. 2008) (“[T]he allegation of an Establishment Clause violation is
sufficient to satisfy the irreparable harm prong of the preliminary injunction
standard” only if “a party has standing to allege such a violation.”) (emphasis
omitted).
Here, the only individuals who are subject to Section 2(c)’s suspension of
entry—aliens outside of, and with no substantial connections to, the United States—
cannot claim any rights under the Establishment Clause, see United States v.
Verdugo-Urquidez, 494 U.S. 259, 265 (1990); DKT Memorial Fund v. Agency for
Int’l Dev., 887 F.2d 275, 285 (D.C. Cir. 1989), or any constitutional rights regarding
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entry into this country, Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). And the
individual plaintiffs themselves are not being deprived of any Establishment Clause
rights, because they are not subject to the Order. See Navy Chaplaincy, 534 F.3d at
764 (a plaintiff “complaining about * * * discrimination suffered by other[] [coreligionists], not by the plaintiff himself,” lacks standing); Moss v. Spartanburg Cty.
Sch. Dist. Seven, 683 F.3d 599, 606 (4th Cir. 2012) (mother and child lacked
standing to challenge school policy awarding academic credit for religious
instruction, because they were “seeking to vindicate, not their own rights, but the
rights of others”).
Plaintiffs attempted below to transform their abstract Establishment Clause
objection into concrete harm by alleging “stigmatizing injuries” based on asserted
“anti-Muslim animus underlying” the Order. Op. 11. But an “‘abstract stigmatic
injury’ resulting” from the perception that government action “turns [religious
adherents] into political outsiders * * * is insufficient to confer standing.” Newdow
v. Lefevre, 598 F.3d 638, 643 (9th Cir. 2010) (quoting Allen v. Wright, 468 U.S. 737,
755 (1984)). The Supreme Court has made clear that “stigmatizing injury” from
alleged discrimination confers standing only on “those persons who are personally
denied equal treatment” by the challenged discriminatory conduct. Allen, 468 U.S.
at 755; see Valley Forge Christian Coll. v. Ams. United for Separation of Church &
State, Inc., 454 U.S. 464, 485-86 (1982) (“[Plaintiffs] fail to identify any personal
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injury suffered by them * * * other than the psychological consequence presumably
produced by observation of conduct with which one disagrees.”).
As this Court likewise has explained, those who are not themselves “targets
or victims” of the challenged policy cannot claim injury based on “the bare fact of
disagreement with [the] policy, even passionate disagreement premised on
Establishment Clause principles.” Moss, 683 F.3d at 605-06; see Navy Chaplaincy,
534 F.3d at 764-65. Plaintiffs suffer no cognizable injury at all, much less substantial
injury sufficient to preclude a stay, from mere “abstract knowledge” of an allegedly
unconstitutional policy or from supposedly being made to “feel like * * *
outsider[s],” where they were not themselves “the targets or victims of this alleged
religious intolerance.” Moss, 683 F.3d at 606.
II.

The Government Is Likely To Prevail On The Merits
A stay also is appropriate because defendants are likely to succeed on their

appeal of the district court’s injunction. For the reasons discussed above and in the
government’s opening brief, the district court erred in finding plaintiffs’ claim
justiciable. The district court further erred in holding that plaintiffs were likely to
prevail on two grounds: first, that Section 2(c) exceeds the President’s statutory
authority; and second, that Section 2(c) violates the Establishment Clause. As
explained more fully in defendants’ opening brief, neither ground withstands
scrutiny.
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First, Section 2(c) falls squarely within the President’s statutory authority.
Two separate statutes, 8 U.S.C. §§ 1182(f) and 1185(a), grant the President broad
power that encompasses the suspension. The district court actually agreed that
Section 1182(f) permits the President to restrict entry of aliens based on nationality,
but concluded that another statute, id. § 1152(a)(1)(A), prohibits the President from
denying immigrant visas based on nationality. Op. 24. The court’s interpretation
would require aliens who otherwise qualify for immigrant visas to be issued such
visas, only to be denied admission upon physical arrival. Congress did not require
that senseless result. Section 1152(a)(1)(A) does not prohibit consular officers from
taking account of the fact that an alien requesting a visa is validly barred from
entering the country under Section 1182(f). See 8 U.S.C. § 1201(g). And Congress
has made clear that Section 1152(a)(1)(A) does not apply at all to Executive action
addressing the “procedures for the processing of immigrant visa applications or the
locations where such applications will be processed,” id. § 1152(a)(1)(B), which
encompasses Section 2(c)’s temporary pause on entry. In any event, even if the
district court were correct that Section 1152(a)(1)(A) prohibits denying immigrant
visas to aliens because they are covered by Section 2(c), it could not support
enjoining the suspension of their entry under Section 2(c).
Second, plaintiffs are not likely to succeed in challenging Section 2(c) under
the Establishment Clause. The Supreme Court has forbidden second-guessing the
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Executive’s exercise of his broad statutory authority regarding exclusion of aliens
so long as it is based on a facially legitimate, bona fide reason. Mandel, 408 U.S. at
770. Section 2(c) of the Order easily clears that threshold: it is expressly aimed at
protecting national security, and it does so by adopting special safeguards for foreign
nationals of six countries that Congress and the Executive previously identified as
posing heightened concerns.
The district court declined to apply Mandel’s settled standard, opting instead
for Establishment Clause case law addressing far-removed issues such as local
religious displays.

Op. 37-38.

The district court’s failure to apply directly

applicable, dispositive Supreme Court precedent renders its conclusion untenable.
Moreover, plaintiffs’ Establishment Clause claims fail even under the inapposite
precedent the district court applied.

The court held that Section 2(c)’s entry

suspension is likely unconstitutional based not on anything the Order says or does—
Section 2(c) is neutral with respect to religion—but on an improper motive the court
inferred primarily from campaign and similar statements. That analysis is directly
contrary to Supreme Court case law, which makes clear that only the official purpose
of government acts, not inferences drawn from campaign-trail comments, counts for
Establishment Clause purposes. McCreary County v. ACLU, 545 U.S. 844, 860-64
(2005). As McCreary instructed, courts must evaluate whether official action has
an improper religious purpose based on the “the ‘text, legislative history, and
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implementation of the statute,’ or comparable official act,” not through “judicial
psychoanalysis of a drafter’s heart of hearts.” Id. at 862 (quoting Santa Fe Indep.
Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). In all events, the earlier statements
concerning a “Muslim ban” bear no resemblance to Section 2(c) of the Order, which
briefly suspends entry (subject to exceptions and waivers) by nationals from six
countries that were previously identified by Congress and the Executive as
presenting heightened terrorism concerns and that contain approximately 10% of the
global Muslim population.
III.

The Nationwide Injunction Is Improper
Even if some injunctive relief were appropriate, a stay pending appeal

nevertheless is warranted because the injunction the court entered is fatally
overbroad for at least three reasons. The injunction should be stayed in its entirety
until this Court can definitively resolve its validity and scope. At a minimum, the
Court should stay the injunction in part for reaching beyond proper bounds.
A.

The injunction impermissibly purports to enjoin the President himself.

It has been settled for 150 years that federal courts generally “ha[ve] no jurisdiction
* * * to enjoin the President in the performance of his official duties.” Franklin v.
Massachusetts, 505 U.S. 788, 802-03 (1992) (quoting Mississippi v. Johnson,
71 U.S. (4 Wall.) 475, 501 (1867)). Any injunction here must be confined to run
only against federal agencies and officials charged with implementing Section 2(c).
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B.

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The district court enjoined Section 2(c) on its face, but plaintiffs have

fallen far short of carrying their burden of “establish[ing] that no set of circumstances
exists under which the [Order] would be valid.” United States v. Salerno, 481 U.S.
739, 745 (1987). For example, the Order is clearly lawful as applied to foreign
nationals with no immediate relatives in the country and no other significant
connection to it; as noted, such aliens abroad have no First Amendment rights
themselves, and no person in the U.S. can claim that exclusion of such aliens violates
the person’s own cognizable rights. The district court offered no justification for
enjoining the Order’s application to persons as to whom it is indisputably valid.
C.

The injunction’s broad sweep—enjoining the Order’s application to

any person, nationwide—violates the well-settled rule that injunctive relief must be
limited to redressing the plaintiff’s own cognizable injuries. That rule is required by
both the Constitution and traditional principles of equity.
Article III demands that “[t]he remedy” sought must “be limited to the
inadequacy that produced the injury in fact that the plaintiff has established.”
Lewis v. Casey, 518 U.S. 343, 357 (1996). “The actual-injury requirement would
hardly serve [its] purpose * * * —of preventing courts from undertaking tasks
assigned to the political branches—if once a plaintiff demonstrated harm from one
particular inadequacy in government administration, the court were authorized to

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remedy all inadequacies in that administration.” Id.; see City of Los Angeles v.
Lyons, 461 U.S. 95, 101-02 (1983).
Bedrock principles governing equitable remedies independently support the
same requirement that injunctions be no broader than “necessary to provide
complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., Inc., 512 U.S.
753, 765 (1994). This Court has repeatedly set aside injunctions that were “broader
in scope than that ‘necessary to provide complete relief to the plaintiff’ and * * * did
not carefully address only the circumstances of the case.” Kentuckians for the
Commonwealth, Inc. v. Rivenburgh, 317 F.3d 425, 436 (4th Cir. 2003); see Va. Soc’y
for Human Life, Inc. v. FEC, 263 F.3d 379, 392-94 (4th Cir. 2001); Ga.-Pac.
Consumer Prods. LP v. von Drehle Corp., 781 F.3d 710, 715-17 (4th Cir. 2015).
That principle applies with even greater force to a preliminary injunction, an
equitable tool designed merely to “preserve the relative positions of the parties until
a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395
(1981); see Consolidation Coal Co. v. Disabled Miners of S. W. Va., 442 F.2d 1261,
1267 (4th Cir. 1971).
The district court’s categorical, nationwide injunction is irreconcilable with
the fundamental rule limiting injunctions to redressing plaintiffs’ injuries. The
district court identified only three individual plaintiffs who supposedly have
standing because their foreign-national family members may be unable to enter the
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country on non-refugee visas. Op. 12-18. Those claimed injuries, if cognizable at
all, would be fully redressed by an injunction regarding those plaintiffs’ specific
family members. None of the plaintiffs can claim any “personal stake” in any relief
beyond their own relatives. Lyons, 461 U.S. at 101-02; see Valley Forge, 454 U.S.
at 485-86. The district court’s injunction barring enforcement of Section 2(c) as to
any foreign national—even those with no ties to persons in the U.S.—thus “is far
broader” than “necessary to provide [plaintiffs] complete relief.” Kentuckians for
the Commonwealth, 317 F.3d at 436.
None of the district court’s justifications for enjoining Section 2(c) nationwide
survives scrutiny. The court asserted that the “Individual Plaintiffs and clients of the
Organizational Plaintiffs are located in different parts of the United States.” Op. 41.
But an injunction addressing the individual plaintiffs’ relatives would fully resolve
their purported injuries regardless of where they live. And none of the organizational
plaintiffs has standing, because none of them identified any members with standing.
The court also stated that “an Establishment Clause violation has impacts beyond
the personal interests of individual parties.” Id. The relevant question, however, is
not the extent of the Order’s “impacts.” What matters is the extent of relief necessary
to redress injuries to the plaintiffs in this case. Kentuckians for the Commonwealth,
317 F.3d at 436. That an allegedly unconstitutional policy affects others not before
the Court is no basis to enjoin the policy nationwide. See Va. Soc’y, 263 F.3d at 393
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(holding that “district court abused its discretion by issuing a nationwide injunction”
against the FEC because that scope was unnecessary to provide plaintiffs complete
relief and “ha[d] the effect” of interfering with other courts’ ability to address same
issues).
Finally, the district court asserted that the importance of “uniform
immigration law” compelled nationwide relief. Op. 42. That is incorrect. Properly
limiting any injunctive relief to the individual plaintiffs before the Court would pose
no genuine threat to uniformity. To the contrary, proper respect for uniformity
requires leaving the Order’s nationwide policy in place, with individualized
exceptions for particular plaintiffs who have established irreparable injury from a
likely violation of their own constitutional rights. The Order’s express severability
clause compels the same conclusion. See Order § 15(a) (providing that if “the
application of any provision [of the Order] to any person or circumstance[] is held
to be invalid, * * * the application of [the Order’s] other provisions to any other
persons or circumstances shall not be affected”). Such appropriately tailored relief
would pose significantly less interference with federal immigration policy than
enjoining the President’s directive nationwide based on the injuries of only a few
individual plaintiffs.

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CONCLUSION
For these reasons, defendants respectfully request that the Court stay the
district court’s preliminary injunction pending final disposition of the appeal. At a
minimum, if the Court were to conclude that certain plaintiffs have made the
requisite showing of cognizable and irreparable injury, the Court should grant a
partial stay of the injunction insofar as it extends beyond such plaintiffs.
Respectfully submitted,

/s/ Jeffrey B. Wall
CHAD A. READLER
Acting Assistant Attorney General

JEFFREY B. WALL
Acting Solicitor General

ROD J. ROSENSTEIN
United States Attorney

EDWIN S. KNEEDLER
Deputy Solicitor General

AUGUST E. FLENTJE
Special Counsel to the Assistant
Attorney General
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys, Appellate Staff
Civil Division, Room 7241
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 353-2689

MARCH 2017

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CERTIFICATE OF COMPLIANCE
I hereby certify that this motion complies with the type-face requirements of
Fed. R. App. P. 32(a)(5) and the type-volume limitations of Fed. R. App. P.
27(d)(2)(A). This motion contains 5,162 words, excluding the parts of the motion
excluded by Fed. R. App. P. 27(d)(2) and 32(f).

/s/ Sharon Swingle
Sharon Swingle

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CERTIFICATE OF SERVICE
I hereby certify that on March 24, 2017, I electronically filed the foregoing
motion with the Clerk of the Court for the United States Court of Appeals for the
Fourth Circuit by using the appellate CM/ECF system. Participants in the case are
registered CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.

/s/ Sharon Swingle
Sharon Swingle