No.

In the Supreme Court of the United States
DONALD J. TRUMP, ET AL., PETITIONERS
v.
INTERNATIONAL REFUGEE ASSISTANCE PROJECT,
A PROJECT OF THE URBAN JUSTICE CENTER, INC.,
ON BEHALF OF ITSELF AND ITS CLIENTS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI
JEFFREY B. WALL
Acting Solicitor General
Counsel of Record
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
JONATHAN C. BOND
Assistant to the Solicitor
General
AUGUST E. FLENTJE
Special Counsel
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTIONS PRESENTED

The Constitution and Acts of Congress confer on the
President broad authority to prohibit or restrict the entry
of aliens outside the United States when he deems it in
the Nation’s interest. Exercising that authority, the
President issued Executive Order No. 13,780, 82 Fed.
Reg. 13,209 (Mar. 9, 2017). Section 2(c) of that Order
suspends for 90 days the entry of foreign nationals from
six countries that Congress or the Executive previously
designated as presenting heightened terrorism-related
risks, subject to case-by-case waivers. The district court
issued, and the court of appeals upheld, a preliminary
injunction barring enforcement of Section 2(c) against
any person worldwide, because both courts concluded
that the suspension violates the Establishment Clause.
The questions presented are:
1. Whether respondents’ challenge to the temporary
suspension of entry of aliens abroad is justiciable.
2. Whether Section 2(c)’s temporary suspension of
entry violates the Establishment Clause.
3. Whether the global injunction, which rests on
alleged injury to a single individual plaintiff, is impermissibly overbroad.

(I)

 PARTIES TO THE PROCEEDING

Petitioners (defendants-appellants below) are Donald
J. Trump, in his official capacity as President of the
United States; the United States Department of Homeland Security; the Department of State; the 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; and Daniel R. Coats, in his official capacity as
Director of National Intelligence.
Respondents (plaintiffs-appellees below) are the
International Refugee Assistance Project, a project of
the Urban Justice Center, Inc., on behalf of itself and its
clients; HIAS, Inc., on behalf of itself and its clients; the
Middle East Studies Association of North America,
Inc., on behalf of itself and its members; Muhammed
Meteab; Paul Harrison; Ibrahim Ahmed Mohomed;
John Doe #1; John Doe #3; and Jane Doe #2.

(II)

 TABLE OF CONTENTS

Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 2
Constitutional, statutory, and regulatory
provisions involved................................................................... 2
Statement:
A. Legal framework ............................................................. 2
B. The Executive Orders ..................................................... 5
C. Procedural history ........................................................... 8
D. Related litigation ........................................................... 12
Reasons for granting the petition:
I. The decision below is wrong ......................................... 13
A. Doe #1’s challenge to Section 2(c) is not
justiciable ................................................................ 14
B. Section 2(c) does not violate the Establishment
Clause ...................................................................... 20
1. Section 2(c) is constitutional under Mandel
and Din .............................................................. 20
2. Section 2(c) is constitutional under domestic
Establishment Clause precedent ..................... 26
C. The global injunction against Section 2(c) is
vastly overbroad..................................................... 31
II. The decision below is in need of review ....................... 33
Conclusion ................................................................................... 35
Appendix A — Court of Appeals Amended Opinion
(4th Cir. May 31, 2017) ................................ 1a
Appendix B — District Court Memorandum Opinion
(D. Md. Mar. 16, 2017) ............................. 208a
Appendix C — District Court Order
(D. Md. Mar. 16, 2017) ............................. 262a
Appendix D — Constitutional, statutory, and
regulatory provisions .............................. 265a

(III)

 IV
TABLE OF AUTHORITIES

Cases:

Page

Allen v. Wright, 468 U.S. 737 (1984) ................................. 17
Arizona v. United States, 132 S. Ct. 2492 (2012) ............. 33
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ............... 18
Board of Educ. of Kiryas Joel Village Sch. Dist.
v. Grumet, 512 U.S. 687 (1994) ....................................... 28
Brownell v. Tom We Shung, 352 U.S. 180 (1956) ............ 14
Catholic League for Religious & Civil Rights v.
City & County of San Francisco, 624 F.3d 1043
(9th Cir. 2010), cert. denied, 563 U.S. 974 (2011) .......... 18
Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993) ......................... 26, 28
City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............ 31
Department of the Navy v. Egan,
484 U.S. 518 (1988) .......................................................... 33
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) .............................................................. 17
Fiallo v. Bell, 430 U.S. 787 (1977) ................................ 14, 21
Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .............. 3
Hawaii v. Trump, No. 17-50:
2017 WL 1011673 (D. Haw. Mar. 15, 2017) ................ 12
2017 WL 1167383 (D. Haw. Mar. 29, 2017) ................ 12
INS v. Chadha, 462 U.S. 919 (1983) ................................. 22
Kerry v. Din, 135 S. Ct. 2128 (2015) ...................... 15, 23, 24
Kleindienst v. Mandel, 408 U.S. 753 (1972) ............. passim
Lemon v. Kurtzman, 403 U.S. 602 (1971) .......................... 9
Lewis v. Casey, 518 U.S. 343 (1996) .................................. 31
Madsen v. Women’s Health Ctr., Inc.,
512 U.S. 753 (1994) .......................................................... 31

 V
Cases—Continued:

Page

McCreary County v. ACLU of Ky.,
545 U.S. 844 (2005) ..................................................... 26, 27
McGowan v. Maryland, 366 U.S. 420 (1961) .............. 16, 17
Moss v. Spartanburg Cnty. Sch. Dist. Seven,
683 F.3d 599 (4th Cir.), cert. denied,
133 S. Ct. (2012) ............................................................... 18
Navy Chaplaincy, In re, 534 F.3d 756
(D.C. Cir. 2008), cert. denied,
556 U.S. 1167 (2009) ................................................... 19, 20
Reno v. American-Arab Anti-Discrim. Comm.,
525 U.S. 471 (1999) .......................................................... 22
Republican Party of Minn. v. White,
536 U.S. 765 (2002) .......................................................... 28
Saavedra Bruno v. Albright, 197 F.3d 1153
(D.C. Cir. 1999)................................................................ 14
Sale v. Haitian Ctrs. Council, Inc.,
509 U.S. 155 (1993) .......................................................... 33
Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs,
641 F.3d 197 (6th Cir.), cert. denied,
565 U.S. 820 (2011) .......................................................... 17
Suhre v. Haywood County, 131 F.3d 1083
(4th Cir. 1997) .................................................................. 18
Texas v. United States, 523 U.S. 296 (1998) .................... 16
United States v. Chemical Found., Inc.,
272 U.S. 1 (1926) .............................................................. 29
United States v. Verdugo-Urquidez,
494 U.S. 259 (1990) .......................................................... 14
United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537 (1950) ........................................................ 2, 3
Valley Forge Christian Coll. v. Americans United
for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .......................................................... 18

 VI
Cases—Continued:

Page

Washington v. Trump:
No. 17-141, 2017 WL 462040
(W.D. Wash. Feb. 3, 2017) ....................................... 5
847 F.3d 1151 (9th Cir. 2017) ........................................ 5
Amended Order, No. 17-35105
(9th Cir. Mar. 17, 2017) ................... 12, 25, 28, 29, 30
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .............................................................. 33
Zadvydas v. Davis, 533 U.S. 678 (2001) ........................... 22
Zivotofsky ex rel. Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ...................................................... 22
Constitution, statutes, and regulations:
U.S. Const.:
Art. II, § 1, Cl. 8 ........................................................... 28
Art. III ..................................................................... 16, 31
Amend. I (Establishment Clause) ............ passim, 265a
Immigration and Nationality Act,
8 U.S.C. 1101 et seq. .......................................................... 3
8 U.S.C. 1101(a)(42) ....................................................... 5
8 U.S.C. 1104(a)(1) ....................................................... 14
8 U.S.C. 1152(a)(1)(A) ........................................... 9, 265a
8 U.S.C. 1157 .................................................................. 5
8 U.S.C. 1181 .................................................................. 3
8 U.S.C. 1182(a)(3)(B) ......................................... 24, 270a
8 U.S.C. 1182(a)(7)(A)(i) ................................................ 3
8 U.S.C. 1182(a)(7)(B)(i)(II) .......................................... 3
8 U.S.C. 1182(a)(7)(B)(iv) .............................................. 3
8 U.S.C. 1182(f ) ..................................... 1, 4, 22, 24, 276a
8 U.S.C. 1185(a)(1) ............................................ 2, 4, 277a
8 U.S.C. 1187 (2012 & Supp. III 2015).......................... 3
8 U.S.C. 1187(a)(12)(A)(i) (Supp. III 2015) .................. 3

 VII
Statutes and regulations—Continued:

Page

8 U.S.C. 1187(a)(12)(A)(ii) (Supp. III 2015) ................. 3
8 U.S.C. 1187(a)(12)(D)(i) (Supp. III 2015) .................. 4
8 U.S.C. 1187(a)(12)(D)(ii) (Supp. III 2015) ................. 4
8 U.S.C. 1201(a)(1) ......................................................... 3
8 U.S.C. 1201(h) ............................................................. 3
8 U.S.C. 1201(i) ............................................................ 14
8 U.S.C. 1202(h) ............................................................. 3
8 U.S.C. 1203 .................................................................. 3
8 U.S.C. 1204 .................................................................. 3
8 U.S.C. 1225(a) .............................................................. 3
6 U.S.C. 236(b)(1) ............................................................... 14
6 U.S.C. 236(c)(1) ............................................................... 14
6 U.S.C. 236(f ) .................................................................... 14
Exec. Order No. 13,769, 82 Fed. Reg. 8977
(Feb. 1, 2017) ............................................................ 5, 277a
Exec. Order No. 13,780, 82 Fed. Reg. 13,209
(Mar. 9, 2017) ................................................. passim, 289a
22 C.F.R. 42.62 ..................................................................... 3
Miscellaneous:
Bureau of Consular Affairs, U.S. Dep’t of State,
Executive Order on Visas (Mar. 22, 2017),
https://goo.gl/HoNiNz .......................................................... 7
Dep’t of Homeland Sec.:
DHS Announces Further Travel Restrictions for
the Visa Waiver Program (Feb. 18, 2016),
https://goo.gl/OXTqb5 .............................................. 4
Q&A: Protecting the Nation from Foreign
Terrorist Entry to the United States
(Mar. 6, 2017), https://goo.gl/WtVwTu .................... 7

 VIII
Miscellaneous—Continued:

Page

Dan Merica, Trump Signs Executive Order to Keep
Out ‘Radical Islamic Terrorists,’ CNN.com
(Jan. 30, 2017), https://goo.gl/dMZEvO ............................ 31
Letter from Jefferson B. Sessions III,
Att’y Gen., & John Francis Kelly,
Sec’y of Homeland Sec., to President Donald J.
Trump (Mar. 6, 2017), https://goo.gl/H69g8I ................... 6
U.S. Dep’t of State, Country Reports on Terrorism
2015 (June 2016), https://goo.gl/40GmOS.............................3

 In the Supreme Court of the United States
No.
DONALD J. TRUMP, ET AL., PETITIONERS
v.
INTERNATIONAL REFUGEE ASSISTANCE PROJECT,
A PROJECT OF THE URBAN JUSTICE CENTER, INC.,
ON BEHALF OF ITSELF AND ITS CLIENTS, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of petitioners
President Donald J. Trump, et al., respectfully petitions
for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Fourth Circuit
in this case.
OPINIONS BELOW

The amended opinion of the court of appeals (App.,
infra (App.), 1a-207a) is not yet reported in the Federal
Reporter, but a prior version of the opinion is available
at 2017 WL 2273306. The opinion of the district court
(App. 208a-261a) is not yet reported in the Federal
Supplement but is available at 2017 WL 1018235. The
order of the district court entering a preliminary injunction (App. 262a-264a) is not published.

(1)

 2
JURISDICTION

The judgment of the court of appeals was entered on
May 25, 2017. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
CONSTITUTIONAL, STATUTORY, AND
REGULATORY PROVISIONS INVOLVED

Pertinent constitutional, statutory, and regulatory
provisions are reproduced in the appendix to this petition. App. 265a-312a.
STATEMENT

The Constitution and Acts of Congress confer on the
President broad authority to suspend or restrict the
entry of aliens outside the United States when he deems
it in the Nation’s interest. See United States ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950);
8 U.S.C. 1182(f ), 1185(a)(1). Exercising that authority,
and after consulting with the Secretaries of State and
Homeland Security and the Attorney General, the President placed a temporary 90-day pause (subject to individualized waivers) on the entry of certain foreign
nationals from six countries that are sponsors or shelters of terrorism, and that Congress or the Executive
previously had designated as presenting heightened
terrorism-related risks. The district court entered a
global injunction barring enforcement of the President’s
action. App. 262a-264a. The court of appeals affirmed
on the basis that the President’s “stated national security interest” “was provided in bad faith, as a pretext for
its religious purpose.” App. 45a; see App. 38a-65a.
A. Legal Framework

“The exclusion of aliens is a fundamental act of sovereignty” that lies in the “legislative power” and also “is
inherent in the executive power to control the foreign

 3
affairs of the nation.” Knauff, 338 U.S. at 542; see
Harisiades v. Shaughnessy, 342 U.S. 580, 588-589
(1952) (Control of the Nation’s borders is “interwoven”
with “the conduct of foreign relations” and “the war
power.”). Congress has addressed admission into the
United States in the Immigration and Nationality Act
(INA), 8 U.S.C. 1101 et seq., which accords the President broad discretion to suspend or restrict the entry of
aliens abroad.
1. Under the INA, admission into the United States
normally requires a valid visa or other valid travel document. See 8 U.S.C. 1181, 1182(a)(7)(A)(i) and (B)(i)(II),
1203. Applying for a visa typically requires an in-person
interview and results in a decision by a State Department consular officer. 8 U.S.C. 1201(a)(1), 1202(h),
1204; 22 C.F.R. 42.62. Although a visa normally is necessary for admission, it does not guarantee admission;
the alien still must be found admissible upon arriving at
a port of entry. 8 U.S.C. 1201(h), 1225(a).
Congress has enabled nationals of certain countries to
seek temporary admission without a visa under the Visa
Waiver Program. 8 U.S.C. 1182(a)(7)(B)(iv); 8 U.S.C. 1187
(2012 & Supp. III 2015). In 2015, Congress excluded
from travel under that Program aliens who are dual
nationals of or recent visitors to Iraq or Syria, where
“[t]he Islamic State of Iraq and the Levant (ISIL)
* * * maintain[s] a formidable force”; as well as
nationals of and recent visitors to countries designated
by the Secretary of State as state sponsors of terrorism
(currently Iran, Sudan, and Syria). 1

U.S. Dep’t of State, Country Reports on Terrorism 2015, at 6, 299302 (June 2016), https://goo.gl/40GmOS; see 8 U.S.C. 1187(a)(12)(A)(i)
and (ii) (Supp. III 2015); App. 7a n.4.
1

 4
Congress also has authorized the Department of
Homeland Security (DHS) to designate additional countries of concern, considering whether a country is a “safe
haven for terrorists,” “whether a foreign terrorist organization has a significant presence” in the country, and
“whether the presence of an alien in the country * * *
increases the likelihood that the alien is a credible threat
to” U.S. national security. 8 U.S.C. 1187(a)(12)(D)(i) and
(ii) (Supp. III 2015). Applying those criteria, in February
2016, DHS excluded recent visitors to Libya, Somalia, and
Yemen from travel under the Visa Waiver Program. 2
2. Beyond the Executive’s authority to remove nationals of particular countries from the Visa Waiver Program,
Congress has accorded the President broad discretion
to suspend or restrict the admission of aliens. Section
1182(f ) of Title 8 of the United States Code provides:
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.
Section 1185(a)(1) of Title 8 further grants the President broad authority to adopt “reasonable rules, regulations, and orders” governing entry or removal of
aliens, “subject to such limitations and exceptions as
[he] may prescribe.”

DHS, DHS Announces Further Travel Restrictions for the Visa
Waiver Program (Feb. 18, 2016), https://goo.gl/OXTqb5; App. 7a n.4.
2

 5
B. The Executive Orders

1. On January 27, 2017, the President issued Executive Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017)
(January Order) (App. 277a-288a). The January Order
directed the Secretaries of Homeland Security and
State to assess current screening procedures to determine whether they are sufficient to detect individuals
seeking to enter this country to do it harm. App. 279a
(§ 3(a) and (b)). While that review was ongoing, the January Order suspended for 90 days entry of foreign
nationals of the seven countries already designated as
posing heightened terrorism-related concerns in the
context of the Visa Waiver Program, subject to case-bycase exceptions. App. 280a-281a (§ 3(c) and (g)). Other
provisions addressed the U.S. Refugee Admissions Program (Refugee Program). 8 U.S.C. 1101(a)(42), 1157.
The January Order was challenged in multiple courts.
On February 3, 2017, a district court in Washington
enjoined enforcement nationwide of the 90-day entry
suspension and various refugee-related provisions.
Washington v. Trump, No. 17-141, 2017 WL 462040
(W.D. Wash.). On February 9, 2017, a Ninth Circuit
panel declined to stay that injunction pending appeal.
Washington v. Trump, 847 F.3d 1151 (per curiam).
While acknowledging that the injunction may have been
“overbroad,” the Ninth Circuit declined to narrow it,
concluding that “[t]he political branches are far better
equipped” to do so. Id. at 1166, 1167.
2. On March 6, 2017, responding to the Ninth Circuit’s decision—and in accordance with a formal recommendation of the Secretary of Homeland Security and
the Attorney General—the President issued Executive
Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)
(Order), App. 289a-312a, with an effective date of March

 6
16, 2017, App. 311a (§ 14). 3 The Order revoked the January Order, App. 311a (§ 13), replacing it with significantly
revised provisions that address the Ninth Circuit’s concerns.
At issue here is Section 2(c) of the Order, which temporarily suspends entry of nationals from six countries:
Iran, Libya, Somalia, Sudan, Syria, and Yemen. The suspension’s explicit purpose is to enable the President—
based on the recommendation of the Secretary of Homeland Security, in consultation with the Secretary of State
and Director of National Intelligence—to assess whether
those countries (and others) are providing adequate information “to prevent infiltration by foreign terrorists.”
App. 299a (§ 2(c)); see App. 295a-296a, 298a-299a (§§ 1(f ),
2(a)-(c)). The Order explains that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones,” which is why Congress and
the Executive previously designated them. App. 292a
(§ 1(d)); see App. 289a-290a (§ 1(b)(i)). The Order details
the circumstances of each country that both give rise to
“heightened risks” of terrorism and diminish their governments’ “willingness or ability to share or validate
important information about individuals” needed to
screen them properly. App. 292a-295a (§ 1(d)-(e)). 4

See Letter from Jefferson B. Sessions III, Att’y Gen., & John
Francis Kelly, Sec’y of Homeland Sec., to President Donald J.
Trump (Mar. 6, 2017), https://goo.gl/H69g8I.
4
Although the January Order’s suspension had included Iraq, the
Order omits Iraq from the suspension because of “the close cooperative relationship between” the U.S. and Iraqi governments, and
because, since the January Order, “the Iraqi government has
expressly undertaken steps” to supply information necessary to help
identify possible threats. App. 296a (§ 1(g)); see App. 304a (§ 4).
3

 7
Based on those risks, and to facilitate the review of
existing procedures, the Order “suspend[s] for 90 days”
the “entry into the United States of nationals of ” those
six countries. App. 299a (§ 2(c)). Addressing concerns
courts had raised, however, the Order clarifies that the
suspension applies only to aliens who (1) are outside the
United States on the Order’s effective date, (2) do not
have a valid visa on that date, and (3) did not have a valid
visa on the effective date of the January Order. App.
300a-301a (§ 3(a)). It also expressly excludes other categories of aliens that had concerned courts, including
lawful permanent residents. App. 301a (§ 3(b)).
The Order contains a detailed provision permitting
case-by-case waivers where denying entry “would
cause undue hardship” and “entry would not pose a
threat to national security and would be in the national
interest.” App. 301a-303a (§ 3(c)). It provides a nonexhaustive list of circumstances in which a waiver could be
appropriate, including when the applicant seeks entry
“to visit or reside with a close family member (e.g., a
spouse, child, or parent) who is a United States citizen,
lawful permanent resident, or alien lawfully admitted on
a valid nonimmigrant visa.” App. 303a (§ 3(c)(iv)). Waivers can be requested, and will be acted on by a consular
officer, “as part of the visa issuance process,” or by the
Commissioner of U.S. Customs and Border Protection.
App. 302 (§ 3(c)). 5 Other provisions of the Order, not at
issue here, concern the Refugee Program.

See Bureau of Consular Affairs, U.S. Dep’t of State, Executive
Order on Visas (Mar. 22, 2017), https://goo.gl/HoNiNz; DHS, Q&A:
Protecting the Nation from Foreign Terrorist Entry to the United
States (Mar. 6, 2017), https://goo.gl/WtVwTu.
5

 8
C. Procedural History

1. Respondents—six individuals and three organizations—subsequently filed their operative complaint
challenging the Order under the INA and the Establishment Clause, and moved to “enjoin[] [the Order] in
its entirety.” D. Ct. Doc. 95, at 1 (Mar. 11, 2017); see
C.A. App. 254-258. The individual respondents are U.S.
citizens or lawful permanent residents who claim that
the Order will prevent or delay a foreign-national family
member from entering the United States. Four individuals—John Doe #1, Jane Doe #2, John Doe #3, and Paul
Harrison—allege that Section 2(c) would prevent family
members from obtaining visas. C.A. App. 213-214,
245-252. The other two—Muhammed Meteab and Ibrahim Mohomed—allege that family members would be
denied or delayed admission under the Refugee Program. C.A. App. 249-250, 252.
One organization, the Middle East Studies Association of North America, Inc. (MESA), alleges that Section
2(c) will prevent its members abroad from traveling to
the United States for conferences, deter U.S. members
from conducting work abroad, and prevent foreign scholars from attending MESA’s annual meeting in the U.S.
C.A. App. 213, 243-245. The other two—the International Refugee Assistance Project (IRAP) and HIAS,
Inc.—principally provide resettlement services to refugees and assert injury based on the refugee provisions.
C.A. App. 210-213, 235-243.
2. After expedited briefing and argument, the district court enjoined Section 2(c), but not other challenged provisions. App. 208a-264a. It held that three
individual respondents (Does #1-3) have standing to
challenge Section 2(c) on statutory grounds, App.
222a-227a, but are not likely to succeed on their “claim

 9
that [8 U.S.C.] 1152(a) prevents the President from barring entry to the United States pursuant to [8 U.S.C.]
1182(f ), or the issuance of non-immigrant visas, on the
basis of nationality,” App. 238a. The court held, however, that to the extent implementation of the Order would
involve denying immigrant visas abroad based on nationality, that would likely violate Section 1152(a)(1)(A). App.
233a-238a. But because that statutory holding could not
provide the basis for enjoining Section 2(c)’s entry suspension, the court proceeded to address respondents’
constitutional claim.
The district court held that three respondents
(Doe #1, Doe #3, and Meteab) have standing to assert
an Establishment Clause claim and are likely to succeed
on the merits. App. 228a-230a, 239a-256a. It declined to
consider whether Section 2(c)’s express national-security
basis is a “facially legitimate and bona fide reason” under
Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). App.
254a-255a. Instead, it evaluated respondents’ claim under
Lemon v. Kurtzman, 403 U.S. 602 (1971). App. 239a.
While acknowledging that the Order “is facially neutral
in terms of religion,” the court held—based primarily on
campaign statements made by then-candidate Donald
Trump and subsequent statements by the President’s
aides—that it was adopted for an improper “religious
purpose” of preventing Muslim immigration. App. 247a;
see App. 241a-247a. The court entered a preliminary
injunction barring any enforcement of Section 2(c) and
denied a stay. App. 262a-264a.
3. The government appealed and sought a stay and
expedited briefing. The court of appeals sua sponte
ordered initial hearing en banc and heard argument on
May 8, 2017. On May 25, a divided en banc court largely
affirmed the injunction and denied a stay. App. 1a-207a.

 10
a. The majority addressed only respondents’ Establishment Clause claim, explaining that the district
court’s “narrow statutory ruling [was] not the basis for
[its] broad preliminary injunction.” App. 21a. The
majority held that one respondent, Doe #1, could raise
that constitutional claim. App. 26a. On the merits, the
court reasoned that, although the Order’s “stated
national security interest is, on its face, a valid reason
for Section 2(c)’s suspension of entry,” App. 43a, Mandel provides only “the starting point” for the analysis,
App. 38a. Because, in the majority’s view, Doe #1 had
made “an affirmative showing of bad faith,” it “look[ed]
behind” the government’s “ facially legitimate justification.” App. 41a-42a (citation and internal quotation
marks omitted); see App. 45a-46a. Relying primarily on
statements made by then-candidate Trump in 2015 and
2016, the majority concluded that the Order was “motivated” by a “desire to exclude Muslims from the United
States.” App. 44a, 51a; see App. 48a-52a.
The majority upheld the nationwide injunction except
insofar as it enjoined the “President himself.” App. 73a;
see App. 65a-74a. It held that a violation of respondents’
Establishment Clause rights itself “constitutes irreparable injury” and is not outweighed by harm to the government and public interest. App. 66a (citation omitted); see
App. 65a-71a. The majority further held that nationwide
relief is appropriate because respondents “are dispersed
throughout the United States,” the immigration laws
“should be enforced vigorously and uniformly,” and
“enjoining [Section 2(c)] only as to [respondents] would

 11
not cure the constitutional deficiency.” App. 72a, 73a
(citation and emphasis omitted). 6
b. Four judges filed concurring opinions. App. 75a145a. Judge Traxler concurred in the judgment. App.
75a. Judges Keenan, Thacker, and Wynn, each writing
separately, agreed to varying degrees with the majority’s Establishment Clause analysis and opined that the
Order also likely violated various provisions of the INA.
App. 76a-145a.
c. Judges Agee, Niemeyer, and Shedd filed dissents,
and each judge joined each dissent. App. 146a-207a.
Judge Agee opined that respondents’ Establishment
Clause claim is not justiciable. App. 191a-207a. “[T]he
imagined future denial of a visa to [Doe #1’s] wife is
simply too vague and speculative” to confer standing, he
concluded, and Doe #1’s alleged “stigma” from the
Order “is not a cognizable injury” but “simply a subjective disagreement with a government action.” App.
197a-198a. Judge Niemeyer opined that the majority’s
Establishment Clause analysis “plainly violates” Mandel, and its “extratextual search for evidence suggesting bad faith” both “radically extends” this Court’s
precedents and “has no rational limit.” App. 157a, 165a,
170a. Judge Shedd opined that the district court
“totally failed to respect” the deference due to the
Executive’s national-security judgments, and the
“shortcomings” in its “selectively negative interpretation of political campaign statements” are “obvious.”
App. 182a, 183a.

Although the court of appeals correctly recognized that no
injunction could run against the “President himself,” App. 73a, the
President remains injured by the injunction because it prevents the
Executive Branch from carrying out his Order.
6

 12
D. Related Litigation

Litigation over both Orders also has continued in
other courts. In Washington, the Ninth Circuit denied
reconsideration en banc of the panel’s decision declining
to stay an injunction against the January Order, over the
dissent of five judges who issued three separate opinions.
Amended Order, Washington v. Trump, No. 17-35105
(9th Cir. Mar. 17, 2017). As relevant here, Judge Bybee
explained that Mandel provides the governing “test for
judging executive and congressional action [for] aliens
who are outside our borders and seeking admission.” Id.,
slip op. 11 (Bybee, J., dissenting from denial of reconsideration en banc) (Washington Bybee Dissent). Judge
Kozinski opined that using campaign and other unofficial
statements made outside the process of “crafting an official policy” to establish “unconstitutional motives” is
unprecedented, “unworkable,” and produces “absurd
result[s].” Id., slip op. 5, 6 (Kozinski, J., dissenting from
denial of reconsideration en banc) (Washington Kozinski
Dissent).
On March 15, 2017, a district court in Hawaii entered a
temporary restraining order against all of Sections 2 and
6 of the Order—including provisions that concern only
internal and diplomatic government activities. Hawaii v.
Trump, No. 17-50, 2017 WL 1011673 (D. Haw.). The court
has since converted that order to a preliminary injunction. Hawaii v. Trump, No. 17-50, 2017 WL 1167383
(D. Haw. Mar. 29, 2017). The government’s appeal of that
injunction and request for a stay are currently pending
before the Ninth Circuit, Hawaii v. Trump, No. 17-15589,
which heard argument on May 15, 2017.

 13
REASONS FOR GRANTING THE PETITION

At the behest of a single individual plaintiff (John
Doe #1), the divided en banc court of appeals affirmed
a global injunction against a formal national-security
determination by the President, made after consultation with the Secretaries of State and Homeland Security and the Attorney General. The court did not dispute that the President acted at the height of his powers
in instituting Section 2(c)’s temporary pause on entry
by nationals from certain countries that sponsor or shelter terrorism. Nor did it dispute that Section 2(c)’s text
and operation are religion-neutral: its temporary pause
applies to certain nationals of the designated countries
without regard to religion. As respondents conceded
below, Section 2(c) could be constitutional if issued by
some other President. But it is likely unconstitutional
here, the court held, because the President’s “stated
national security interest” “was provided in bad faith,
as a pretext for its religious purpose.” App. 45a (emphases added). That remarkable holding is wrong and in
manifest need of this Court’s review.
I. THE DECISION BELOW IS WRONG

The court of appeals found that one individual plaintiff, Doe #1, has standing to challenge Section 2(c). But
his claim is not justiciable: he does not seek to vindicate
his own Establishment Clause rights based on action
directed against him, and he lacks any imminent injury.
In any event, his claim fails on the merits. This Court
has never invalidated religion-neutral government
action based on speculation about officials’ subjective
motivations drawn from campaign-trail statements by a
political candidate. And even if Doe #1 could clear that
hurdle, he still could obtain only an injunction to redress
his alleged injury—not a global injunction barring

 14
enforcement of Section 2(c) as to thousands of unidentified aliens abroad. The decision below fails to adhere to
foundational principles regarding justiciability, constitutional interpretation, and the scope of equitable relief.
A. Doe #1’s Challenge To Section 2(c) Is Not Justiciable

1. This Court has “long recognized the power to
expel or exclude aliens as a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.” Fiallo v.
Bell, 430 U.S. 787, 792 (1977). That principle is manifested in “the doctrine of consular nonreviewability,”
which provides that the Executive’s decision to issue or
revoke a visa for an alien abroad “is not subject to judicial review * * * unless Congress says otherwise.”
Saavedra Bruno v. Albright, 197 F.3d 1153, 1159 (D.C.
Cir. 1999); Brownell v. Tom We Shung, 352 U.S. 180, 184
n.3, 185 n.6 (1956). Far from saying otherwise, Congress has reaffirmed the doctrine. It has forbidden
“judicial review” of visa revocations (subject to a narrow
exception). 8 U.S.C. 1201(i). And it has not authorized
any judicial review of visa denials by the alien affected,
much less by third parties. E.g., 6 U.S.C. 236(b)(1), (c)(1),
and (f ); 8 U.S.C. 1104(a)(1).
The denial of a visa and the doctrine of consular nonreviewability generally raise no constitutional question
because aliens abroad ordinarily lack any constitutional
rights regarding entry. See United States v. VerdugoUrquidez, 494 U.S. 259, 265 (1990); Kleindienst v.
Mandel, 408 U.S. 753, 762 (1972). This Court has twice
permitted limited judicial review, however, when a U.S.
citizen plausibly alleged that the refusal of a visa to an
alien abroad violated the citizen’s own constitutional
rights. In Mandel, the Court reviewed a claim that the
exclusion of a Belgian national who wished to speak on

 15
communism violated U.S. citizens’ First Amendment
right to receive information. 408 U.S. at 756-759, 762770. And in Kerry v. Din, the Court reviewed a claim
by a U.S. citizen that the exclusion of her husband
implicated her due-process rights. 135 S. Ct. 2128, 2131
(2015) (opinion of Scalia, J.); id. at 2139 (Kennedy, J.,
concurring in the judgment) (assuming without deciding that U.S. citizen had protected liberty interest in
husband’s visa application).
2. That limited exception does not apply here. As
the case comes to this Court, the global injunction
against Section 2(c) rests on a single individual, Doe #1.
The court of appeals concluded that Doe #1 has standing “with respect to [his] Establishment Clause claim,”
and it did not decide whether any other respondents
also have standing on that claim (or whether Doe #1 has
standing to raise a statutory claim). App. 34a. 7 Doe #1,
the court stated, asserts “two distinct injuries” from
Section 2(c): first, that it would delay “his wife’s entry
into the United States” as an Iranian national and
thereby “prolong their separation”; and, second, that it
The court of appeals correctly did not hold that any other
respondent has standing to challenge Section 2(c). Harrison’s fiancé
and Doe #3’s wife were issued visas and so are not affected by the
Order. Gov’t C.A. Br. 19 n.6; Resps. C.A. Supp. App. 819. Jane Doe
#2 is petitioning for her sister, but there is a multi-year backlog for
immigrant-visa numbers for U.S. citizens’ siblings. Gov’t C.A. Br.
19 & n.7. The remaining individual respondents seek admission of
relatives as refugees—a process not affected by Section 2(c). App.
15a-16a. IRAP and HIAS likewise assert standing based on the
Order’s provisions addressing refugees, and MESA asserts standing based on a member’s alleged inability to attend a meeting in
November 2017, after the 90-day suspension would end. See p. 8,
supra; Gov’t C.A. Br. 25. None of the organizations has identified a
member or client whom Section 2(c) would bar from entering.
7

 16
“sends a state-sanctioned message condemning his religion and causing him to feel excluded and marginalized
in his community.” App. 26a; see App. 15a. Neither
alleged injury stems from a putative violation of Doe
#1’s own Establishment Clause rights.
a. Doe #1’s allegations that his wife will be delayed
in entering do not even satisfy Article III. If she would
be scheduled for a visa-application interview during the
90-day suspension and would be found otherwise eligible
for a visa (two facts that are themselves speculative on
this record, see C.A. App. 305), the Order specifically
provides that “[c]ase-by-case waivers could be appropriate” for “close family member[s]” of a “United States citizen” or “lawful permanent resident.” App. 302a, 303a
(§ 3(c)(iv)). Doe #1’s wife is thus a candidate for a waiver.
Unless and until she seeks and is denied a waiver, there
is no final decision denying her entry, and Doe #1’s claim
is not ripe because it depends on “contingent future
events that may not occur.” Texas v. United States,
523 U.S. 296, 300 (1998) (citation omitted).
Even assuming Doe #1 has a cognizable injury, it
results not from any alleged religious discrimination
against him, but from supposed religious discrimination
against his wife. In McGowan v. Maryland, 366 U.S.
420 (1961), the Court explained that individuals who are
indirectly injured by alleged religious discrimination
against others generally may not sue, because they have
not suffered violations of their own rights under the
Free Exercise Clause or the Establishment Clause. Id.

 17
at 429-430. 8 And Elk Grove Unified School District v.
Newdow, 542 U.S. 1 (2004), held that a non-custodial
parent could not challenge recitation of the Pledge of
Allegiance at his daughter’s school because his “standing derive[d] entirely from his relationship with his
daughter.” Id. at 15-18 & n.8; see Smith v. Jefferson
Cnty. Bd. of Sch. Comm’rs, 641 F.3d 197, 207 (6th Cir.
2011) (en banc), cert. denied, 565 U.S. 820 (2011). Doe
#1 cannot bring himself within the Mandel /Din exception to nonreviewability by labeling Section 2(c)—which
operates only against aliens abroad—as a violation of his
own Establishment Clause rights.
b. The court of appeals further held that Section 2(c)
injures Doe #1 by sending a “message” that condemns
Islam. App. 29a, 32a. That reframing fares no better,
and it creates a circuit conflict.
i. This Court has “ma[de] clear” that “the stigmatizing injury often caused by racial [or other invidious]
discrimination * * * accords a basis for standing only
to ‘those persons who are personally denied equal treatment’ by the challenged discriminatory conduct.” Allen
v. Wright, 468 U.S. 737, 755 (1984) (citation omitted). The
Court has applied that rule to Establishment Clause
claims: regardless of “the intensity” of a plaintiff  ’s feelings of aggrievement, “the psychological consequence
presumably produced by observation of conduct with
which one disagrees” is not the type of “personal
Although McGowan held that an Establishment Clause challenge can be based on economic injuries in certain circumstances,
that holding is inapposite because the challengers there were
“direct[ly]” subjected to (indeed, prosecuted under) a Sunday-closing
law, which regulated their own conduct and infringed their own freedom from religious compulsion. See 366 U.S. at 422, 430-431.
Respondents, in contrast, are not directly subject to the Order’s suspension, which applies only to certain aliens abroad.
8

 18
injury” that supports standing to sue, “even though the
disagreement is phrased in [Establishment Clause]
terms.” Valley Forge Christian Coll. v. Americans
United for Separation of Church & State, Inc., 454 U.S.
464, 485-486 (1982).
To be sure, a plaintiff may suffer a “spiritual” injury
from the violation of his own Establishment Clause
rights where he himself has been “subjected to unwelcome religious exercises” or “forced to assume special
burdens to avoid them.” Valley Forge, 454 U.S. at 486
n.22. But that principle is inapposite here. In the cases
the court of appeals cited, App. 29a-31a & n.10, the
plaintiffs were personally exposed to (1) an official
statement or practice that explicitly addressed religion
and (2) that was directed toward them by their own local
or state government. 9
Neither element is present here. Section 2(c) does
not expose respondents to a religious message; it says
nothing about religion. And Section 2(c) is not directly
targeted at respondents; it applies only to aliens
abroad. These differences foreclose Doe #1’s claim that
See Moss v. Spartanburg Cnty. Sch. Dist. Seven, 683 F.3d 599,
607 (4th Cir.) (public high-school student and parent had standing
to challenge school policy granting course credit for private religious education and was promoted to them in letter from parochial
school), cert. denied, 133 S. Ct. 623 (2012); Suhre v. Haywood
County, 131 F.3d 1083, 1084-1085 (4th Cir. 1997) (county resident
had standing to challenge Ten Commandments display in courtroom
of county courthouse); Catholic League for Religious & Civil Rights
v. City & County of San Francisco, 624 F.3d 1043, 1047, 1052-1053
(9th Cir. 2010) (en banc) (city residents had standing to challenge
city resolution condemning certain actions and beliefs of Catholic
Church), cert. denied, 563 U.S. 974 (2011); Awad v. Ziriax, 670 F.3d
1111, 1117-1118, 1122-1123 (10th Cir. 2012) (state resident could
challenge state constitutional amendment presented to voters forbidding state courts from considering “Sharia Law”).
9

 19
Section 2(c) violates his own Establishment Clause
rights. The court of appeals tried to sidestep this problem by asserting that, in addressing justiciability, it had
to “assume the merits” of Doe #1’s argument that the
Order “sends a sufficiently religious message such that
it violates the Establishment Clause.” App. 30a n.9. But
regardless of whether Section 2(c) sends a message,
Valley Forge’s rule required the court to determine
whether (not merely assume that) the message is
directed to Doe #1 in a way that causes him cognizable
injury. The lesson of this Court’s cases is that, when the
message flows from allegedly discriminatory conduct
aimed at others, only those targets of the conduct may
sue.
ii. The court of appeals’ holding that Doe #1 may sue
based on an alleged “message of religious condemnation,” App. 32a, conflicts with In re Navy Chaplaincy,
534 F.3d 756 (D.C. Cir. 2008) (Kavanaugh, J.), cert.
denied, 556 U.S. 1167 (2009). As the D.C. Circuit
explained, it would “eviscerate well-settled standing limitations” to allow a putative Establishment Clause plaintiff to “re-characterize[]” an abstract injury flowing from
“government action” directed against others as a personal injury from “a governmental message [concerning]
religion” directed at the plaintiff. Id. at 764. If that were
permissible, the D.C. Circuit noted, the challengers in
Valley Forge and other cases “could have obtained standing to sue simply by targeting not the government’s
action, but rather the government’s alleged ‘message’ of
religious preference communicated through that action.”
Ibid. The D.C. Circuit therefore held that the plaintiffs
(Protestant chaplains in the Navy) could not challenge
alleged discrimination against others (different

 20
Protestant chaplains) by claiming that it conveyed a proCatholic message to them. Id. at 762-765.
The court of appeals attempted to distinguish Valley
Forge and Navy Chaplaincy on the ground that “Doe #1
is directly affected by the government action—both its
message and its impact on his family.” App. 32a n.11.
But the abstract “message” he alleges could be asserted
by any Muslim in the country—indeed, perhaps by anyone offended by Section 2(c)’s perceived message. And
as explained above, the Order’s only effect particular to
Doe #1—the speculative delay in the entry of his wife—
does not stem from his religion or any violation of his own
Establishment Clause rights.
B. Section 2(c) Does Not Violate The Establishment Clause

On the merits, the President’s national-security determination provides a “facially legitimate and bona fide
reason” for Section 2(c)’s temporary suspension on entry.
Mandel, 408 U.S. at 770. The court of appeals arrived at
a contrary conclusion by disregarding Mandel ’s deferential standard and looking instead to domestic Establishment Clause decisions. Even under its unprecedented approach, the court should have upheld Section
2(c). This Court’s decisions and respect for a coordinate
branch forbid invalidating religion-neutral government
action not because of what it says or does, but because of
what supposedly motivated the President (and his advisors) in issuing it.
1. Section 2(c) is constitutional under Mandel and Din

a. The court of appeals acknowledged that Doe #1’s
Establishment Clause challenge to the exclusion of
aliens abroad is governed by Mandel, App. 38a, which
the court and other circuits have “equated” with
“rational basis review,” App. 40a n.14 (collecting cases).

 21
There, the Executive denied admission to a Belgian journalist, Ernest Mandel, who wished to speak on communism. 408 U.S. at 756-759. Because the Attorney
General gave “a facially legitimate and bona fide reason”
for Mandel’s exclusion—Mandel had violated the conditions of previous visas—“courts will neither look behind
the exercise of that discretion, nor test it by balancing
its justification against the” asserted constitutional
rights of U.S. citizens. Id. at 770. That deferential
standard reflects the Constitution’s allocation of power
over the admission of aliens, which is “to be exercised
exclusively by the political branches.” Id. at 765 (citation omitted); see Fiallo, 430 U.S. at 792-796 (applying
Mandel ’s test to equal-protection challenge to statute
governing admission of aliens).
Mandel compels rejecting Doe #1’s constitutional
challenge. The court of appeals accepted that Section
2(c)’s entry suspension rests on a facially legitimate
reason: protecting national security. App. 43a. And the
Order supplies a bona fide factual basis for that reason:
Section 1(d) explains that Congress or the Executive
previously designated the six listed countries as presenting terrorism-related concerns that “diminish[] the
foreign government’s willingness or ability to share or
validate important information about” its nationals.
App. 292a-293a. Section 1(e) then details, country by
country, why each poses “heightened risks.” App. 293a295a. Neither Doe #1 nor the court of appeals contested these facts. On that factual basis, Sections 1(f )
and 2(c) set forth the President’s judgment that a temporary pause in entry is needed to “prevent infiltration
by foreign terrorists” and “reduce investigative bur-

 22
dens” while a review of the Nation’s screening and vetting procedures is ongoing. App. 298a-299a; see App.
295a-296a. The Order readily satisfies Mandel ’s test.
That test has particular force here for two reasons.
First, courts are generally “ill equipped to determine
the[] authenticity and utterly unable to assess the[]
adequacy” of the Executive’s “reasons for deeming
nationals of a particular country a special threat.” Reno
v. American-Arab Anti-Discrim. Comm., 525 U.S. 471,
491 (1999). Second, Congress conferred on the President
express authority to suspend the entry of “any class of
aliens * * * for such period as he shall deem necessary”
“[w]henever [he] finds” that their entry “would be detrimental to the interests of the United States.” 8 U.S.C.
1182(f ). Congress’s expansive grant of authority means
that the President’s power “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, 2083-2084 (2015) (citation omitted).
The court of appeals, however, failed to accord the
deference to the Executive that Mandel requires. It
noted that the political branches’ decisions in the immigration context are still “subject to important constitutional limitations.” App. 40a-41a (citation omitted). But
Mandel establishes how those limitations apply with
respect to the exclusion of aliens abroad. 10 The court
then treated Mandel’s “bona fide” requirement as a
Mandel’s substantive standard applies to challenges to decisions
to deny visas to aliens seeking entry. It does not govern every issue
concerning immigration—such as post-removal detention, Zadvydas
v. Davis, 533 U.S. 678 (2001), or the procedure for exercising legislative power over the suspension of deportation of aliens present in the
United States, INS v. Chadha, 462 U.S. 919 (1983).
10

 23
license to ensure that the government’s stated reason
was given “in good faith.” App. 42a. Courts indeed can
ensure that the stated reason bears a rational relationship to the government’s action—i.e., that the reason is
facially bona fide as well as legitimate. But Mandel
explicitly held that the “bona fide” analysis does not
permit “look[ing] behind” the government’s stated reason. 408 U.S. at 770. And the Court declined Justice
Marshall’s invitation in dissent to take “[e]ven the briefest peek behind the Attorney General’s reason for
refusing a waiver.” Id. at 778. The court of appeals’
approach cannot be squared with what Mandel said or
what it did.
b. The court of appeals based its approach on a misreading of Justice Kennedy’s concurrence in Din. App.
42a-45a. There, a U.S. citizen claimed that she had a
due-process right to receive a more extensive explanation for a consular officer’s denial of a visa to her husband. 135 S. Ct. at 2131 (opinion of Scalia, J.). In
rejecting that claim, Justice Kennedy ( joined by Justice
Alito) observed that the government’s citation of a statutory ground of inadmissibility involving terrorism
“indicates it relied upon a bona fide factual basis for
denying [the] visa.” Id. at 2140 (emphasis added). He
noted that the citizen admitted that her husband
“worked for the Taliban government,” which “provide[d]
at least a facial connection to terrorist activity.” Id. at
2141 (emphasis added). Justice Kennedy concluded that,
“[a]bsent an affirmative showing of bad faith on the part
of the consular officer who denied [the] visa—which [the
citizen] ha[d] not plausibly alleged with sufficient
particularity—Mandel instructs [courts] not to ‘look
behind’ the Government’s exclusion of [the husband] for

 24
additional factual details beyond what its express reliance on [the statute] encompassed.” Ibid.
That statement cannot plausibly be read as approving a wide-ranging search for pretext in reviewing consular officers’ decisions, let alone action by the President. Rather, Justice Kennedy posited a far narrower
scenario: the statutory ground of inadmissibility in
8 U.S.C. 1182(a)(3)(B) “specifies discrete factual predicates.” 135 S. Ct. at 2141. Ordinarily, a citation of the
statute alone will suffice to indicate that those predicates have been found; but in an extreme case, where a
citizen plausibly alleges with particularity that a consular officer had no “bona fide factual basis” for determining that an applicant has ties to terrorism, due process
may entitle the citizen to “additional factual details”
about the basis of the consular officer’s decision (provided
the information is not classified). Id. at 2140, 2141.
That type of inquiry is inapposite here for two independent reasons. First, the statute that authorizes the
President’s suspension does not specify any particular
factual predicates: the President need only determine
that, in his judgment, entry “would be detrimental to
the interests of the United States.” 8 U.S.C. 1182(f ).
Second, the court of appeals did not question that the
terrorism-related grounds set forth in the Order provide an adequate factual basis for Section 2(c)’s temporary suspension, even though the court sought to minimize the relative weight of that basis in finding that
national security was not the primary purpose. See
App. 53a-55a. Nothing in Mandel or Din permitted
looking behind the President’s determination, notwithstanding its factual basis, in a search for a contrary subjective motivation.

 25
After reading Din to authorize an inquiry into the
President’s motives, the court of appeals then relied on
domestic Establishment Clause precedent as further
justification for setting aside Section 2(c). App. 45a-46a.
That unprecedented approach is deeply flawed. First,
it defeats Mandel ’s central point that the exclusion of
aliens abroad, over which the political branches have
plenary authority, calls for especially deferential review.
408 U.S. at 770. Second, domestic case law—involving
local religious displays, subsidies for religious schools,
and the like—has no sensible application to the President’s foreign-policy, national-security, and immigration
judgments. The “unreasoned assumption that courts
should simply plop Establishment Clause cases from the
domestic context over to the foreign affairs context
ignores the realities of our world.” Washington Bybee
Dissent 8 n.6. This Court should reject such “intrusion
of the judicial power into foreign affairs” committed to
the political branches. Washington Kozinski Dissent 3 n.2.
Moreover, the court of appeals did not need to reach
any of this. Even if Din could fairly be read to allow a
bad-faith inquiry that turns on a consular officer’s subjective motive, and even assuming such an inquiry
would apply in the same way to a national-security
directive of the President, it would at least require the
clearest affirmative showing of bad faith by the President and Cabinet officials. Doe #1 has not remotely
cleared that high bar. To the contrary, the President’s
actions in response to concerns raised by courts regarding the January Order demonstrate good faith. For
instance, as the Order explains, the January Order had
two provisions aimed at aiding victims of religious persecution. App. 291a-292a (§ 1(b)(iv)). The President
removed them to make clear that national security, not

 26
religion, is the Order’s focus. That response to courts’
concerns is the opposite of bad faith.
2. Section 2(c) is constitutional
Establishment Clause precedent

under

domestic

After rejecting Mandel’s deferential standard of
review, the court of appeals held the Order likely unconstitutional by reaching back in time to campaign statements long before development of the Order. That was
impermissible under any legal standard. Section 2(c) is
not a so-called “Muslim ban,” and campaign comments
cannot change that basic fact.
a. Even in the domestic setting, in deciding whether
official action has an improper religious purpose, courts
look to “the text, legislative history, and implementation
of the statute,” and do not engage in “judicial psychoanalysis of a drafter’s heart of hearts.” McCreary
County v. ACLU of Ky., 545 U.S. 844, 862 (2005) (emphasis added) (citation omitted). Searching for purpose outside the operative terms of governmental action makes
no sense in the Establishment Clause context, because it
is only an “official objective” of favoring or disfavoring
religion gleaned from “readily discoverable fact” that implicates the Clause. Ibid. Here, Section 2(c)’s text does
not refer to or draw any distinction based on religion.
And the suspension’s “operation,” Church of the Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 535
(1993) (Lukumi), confirms that it is religion-neutral: it
applies to six countries based on national-security risk,
and it applies to certain nationals of those countries without regard to their religion.
The court of appeals held, however, that statements by
the President—nearly all before assuming office, while
still a private citizen and political candidate—and informal remarks of his aides imply that the entry suspension

 27
is intended to target Muslims. App. 48a-51a. In the
court’s view, those statements “are the exact type of ‘readily discoverable fact[s]’ ” courts “use in determining a government action’s primary purpose.” App. 51a (quoting
McCreary, 545 U.S. at 862) (brackets in original). Of
course it is readily discoverable that the statements
occurred, but the questions are what candidate Trump
and his aides meant by them—and whether that meaning
should have any import for the President’s later official
action. Resolving the former would require precisely the
type of “judicial psychoanalysis” that McCreary forecloses. 545 U.S. at 862. As for the latter, to the government’s knowledge, the decision below is the first to hold
that a provision of federal law—neutral on its face and in
operation—violates the Establishment Clause based on
speculation about its drafters’ supposedly illicit purpose.
Certainly this Court has never done so. McCreary
involved a display of the Ten Commandments, 545 U.S.
at 850, which are explicitly religious speech. The Court
held that the final display’s “purpose * * * need[ed]
to be understood in light of context,” and the context of
the counties’ prior official actions made their objective
clear. Id. at 874. The Court’s analysis centered on the
text of the county resolutions authorizing the displays,
objective features of those displays, and materials that
government actors deliberately made part of the official
record—such as statements by the county executive’s
pastor at the display’s official unveiling. Id. at 868-874.
The other cases the court of appeals invoked also did

 28
not depend on anything like the campaign statements at
issue here. 11
b. Even if a court may look beyond a law’s text and
operation, it should not consider campaign-trail comments. Here, virtually all of the President’s statements
on which the court of appeals relied were made before
he assumed office, see App. 10a-13a, 48a-50a—before
he took the prescribed oath to “preserve, protect and
defend the Constitution,” U.S. Const. Art. II, § 1, Cl. 8,
and formed a new Administration, including Cabinetlevel officials who recommended adopting the Order.
Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent
authority to protect the welfare of the Nation that the
Constitution reposes in the President.
Moreover, “[b]ecause of their nature, campaign statements are unbounded resources by which to find intent
of various kinds.” App. 169a (Niemeyer, J., dissenting).
“They are often short-hand for larger ideas” and “are
explained, modified, retracted, and amplified as they are
repeated and as new circumstances and arguments
arise.” Ibid. They often are made without the benefit of
advice from an as-yet-unformed Administration. And
they cannot bind elected officials who later conclude that
a different course is warranted. See Republican Party
In Board of Education of Kiryas Joel Village School District v.
Grumet, 512 U.S. 687 (1994), it was “undisputed” that the legislature knew when it created a special school district that its boundaries were drawn specifically to include only members of one religious sect. Id. at 699 (opinion of Souter, J.); id. at 729 (Kennedy, J.,
concurring in the judgment) (law constituted “explicit religious gerrymandering”). Likewise, Lukumi held that the local ordinances’
“text” and “operation” showed that they were a “religious gerrymander.” 508 U.S. at 535 (citation omitted).
11

 29
of Minn. v. White, 536 U.S. 765, 780 (2002); Washington
Kozinski Dissent 4-5.
Here, for example, the court of appeals relied on statements as early as December 2015 (more than 13 months
before the inauguration) referring to immigration by
“Muslims.” App. 49a (citation omitted). But as the court
noted, months later, candidate Trump advocated restrictions based on “territory,” and specifically “nation[s]
that ha[ve] been compromised by terrorism.” App. 50a
(citation omitted). And after taking the oath of office,
forming an Administration, and consulting with Members
of his newly formed Cabinet, the President adopted an
Order that follows a territory-based approach and limits
entry of nationals from six countries that sponsor or shelter terrorism. The debate over the meaning of the President’s statements only highlights the dangers in “opening the door” to campaign comments. App. 170a
(Niemeyer, J., dissenting). To the extent courts consider such comments at all, the “presumption of regularity” that attaches to all federal officials’ actions, United
States v. Chemical Found., Inc., 272 U.S. 1, 14 (1926),
magnified here by respect for a coordinate branch, counsels resolving uncertainty in favor of, not against, the
validity of official Executive action.
Allowing consideration of campaign statements also
“has no rational limit,” raising questions about whether
courts may consider “statements from a previous campaign, or from a previous business conference, or from
college.” App. 170a (Niemeyer, J., dissenting). The
majority did not deny that its approach might permit
considering an official’s “college essay,” asserting only
that such far-removed statements would “rarely” be
“reveal[ing].” App. 61a. That ad hoc approach promises
to “mire [courts] in a swamp of unworkable litigation,”

 30
with no principled rules governing how to assess particular past statements made before a candidate assumes
office. Washington Kozinski Dissent 5. And it threatens to “chill campaign speech,” to which “our most basic
free speech principles have their fullest and most
urgent application.” Ibid. (citation and internal quotation marks omitted).
c. Excluding campaign statements from the analysis
confirms that the decision below is incorrect. The few
post-inauguration remarks by the President and aides
do not demonstrate an impermissible purpose. The
court of appeals cited statements by the President and
aides made between the January Order and the
Order—describing the Order as pursuing “the same
basic policy outcome,” reflecting the same “principles,”
or a “watered down version” of the January Order. App.
50a, 51a (citations omitted). But as the Order explains,
both Orders aimed at the same national-security objective: facilitating a review of existing screening and vetting
procedures. App. 289a-298a (§ 1(b)-(i)). The Order pursues that objective through substantially revised provisions; the differences are clear on the Order’s face.
The court of appeals held that a passing remark by
the President when signing the January Order signals an
improper motive. After reading its title—“Protecting
the Nation From Foreign Terrorist Entry Into the
United States,” App. 277a—he stated, “[w]e all know
what that means.” App. 50a (citation omitted). Minutes
earlier, in the presence of the newly sworn-in Secretary
of Defense, the President had said, “I am establishing
new vetting measures to keep radical Islamic terrorists
out of the United States of America * * * . We want to
ensure that we are not admitting into our country the

 31
very threats our soldiers are fighting overseas.” 12 In
context, the President’s passing remark is reasonably
understood to refer to terrorist groups like ISIL and al
Qaeda, not all Muslims. It is at least ambiguous, and the
court erred in setting aside an Executive Order based on
an offhand, six-word comment.
C. The Global Injunction Against Section 2(c) Is Vastly
Overbroad

Constitutional and equitable principles require that
injunctive relief be limited to redressing a plaintiff  ’s own
cognizable injuries. Under Article III, “[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 actualinjury 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
remedy all inadequacies in that administration.” Ibid.;
see City of Los Angeles v. Lyons, 461 U.S. 95, 101-102
(1983). Equitable principles independently require 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) (citation omitted).
The court of appeals held that one respondent,
Doe #1, has standing to challenge Section 2(c). See p. 10,
supra. Narrowing the injunction to bar application of
Section 2(c) to Doe #1’s wife would have prevented any

Dan Merica, Trump Signs Executive Order to Keep Out ‘Radical
Islamic Terrorists,’ CNN.com (Jan. 30, 2017), https://goo.gl/dMZEvO.
12

 32
delay in her entry. Yet the court upheld a global injunction barring enforcement of Section 2(c) as to any
national of the six countries. App. 71a-73a. It reasoned
that, because Section 2(c) supposedly sends a message of
condemnation to Muslims, the provision had to be
enjoined worldwide—lest any application communicate
that message to Doe #1. App. 29a-31a. That reasoning
places in stark relief how respondents’ “condemnation”
theory (App. 32a) would eviscerate limitations on both
standing and equitable relief. By recharacterizing Section 2(c) as government speech directed at U.S. citizens,
rather than government conduct directed at aliens
abroad, any U.S. citizen apparently could obtain a global
injunction against Section 2(c)—or any other allegedly
discriminatory immigration law—to silence the supposed message. That result plainly warrants review.
None of the court of appeals’ other justifications withstands scrutiny. It stated that respondents “are dispersed
throughout the United States,” App. 72a, but it did not
conclude that any res-pondent besides Doe #1 has standing. The court also noted that “Congress has made clear
that the immigration laws of the United States should be
enforced vigorously and uniformly.” Ibid. (citation,
emphasis, and internal quotation marks omitted). That is
a curious rationale for preventing enforcement of Section
2(c). Proper respect for uniform enforcement and for a
coordinate branch require leaving Section 2(c) in place,
with an individualized exception, if necessary, for Doe #1
and his wife. The Order’s express severability clause
compels the same conclusion. 13 Such tailored relief would
App. 312a (§ 15(a)) (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.”).
13

 33
have posed far less interference with federal policy than
enjoining the President’s directive wholesale based on
alleged injuries to one individual.
II. THE DECISION BELOW IS IN NEED OF REVIEW

The court of appeals, convening en banc sua sponte,
upheld a global injunction against a formal nationalsecurity directive of the President, acting at the core of
his constitutional and statutory authority. This Court
often grants review to address interference with Executive Branch conduct implicating significant “national
security concerns,” Department of the Navy v. Egan,
484 U.S. 518, 520 (1988); see Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 12 (2008), or the scope of “federal power” over “the law of immigration and alien status,”
Arizona v. United States, 132 S. Ct. 2492, 2498 (2012). This
case involves both. In addition, as explained in the government’s accompanying stay application (at 20-22),
the injunction interferes with the President’s “unique
responsibility” to conduct the Nation’s foreign affairs,
Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 188
(1993), and threatens to undermine the Executive in
interacting with other nations.
In declaring the Order unconstitutional, the decision
below addressed important questions of justiciability,
constitutional interpretation, and the scope of injunctive relief. And the stakes are indisputably high: the
court of appeals concluded that the President acted in
bad faith with religious animus when, after consulting
with three Members of his Cabinet, he placed a brief
pause on entry from six countries that present heightened risks of terrorism. The court’s decision creates
uncertainty about the President’s authority to meet
those threats as the Constitution and Acts of Congress
empower and obligate him to do. Given the ruling’s lack

 34
of any limiting principle, courts, the public, and other
governments may view it as casting a shadow over virtually any action the President takes concerning the six
countries covered by Section 2(c), and perhaps other
nations. The Court should grant review to restore clarity regarding the President’s ability to discharge his constitutional duty.
* * * * *
This Order has been the subject of passionate political
debate. But whatever one’s views, the precedent set by
this case for the judiciary’s proper role in reviewing
the President’s national-security and immigration
authority will transcend this debate, this Order, and this
constitutional moment. Precisely in cases that spark
such intense feelings, it is all the more critical to adhere
to foundational legal rules. The decision below departs
from those rules, and calls into question the Executive
and his authority in a way that warrants this Court’s
review.

 35
CONCLUSION

The petition for a writ of certiorari should be granted.
Respectfully submitted.
JEFFREY B. WALL
Acting Solicitor General
CHAD A. READLER
Acting Assistant Attorney
General
EDWIN S. KNEEDLER
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
JONATHAN C. BOND
Assistant to the Solicitor
General
AUGUST E. FLENTJE
Special Counsel
DOUGLAS N. LETTER
SHARON SWINGLE
H. THOMAS BYRON III
LOWELL V. STURGILL JR.
Attorneys

JUNE 2017