U.S. Department of Justice Office of Information Policy 441 G Street, NW Sixth Floor Washington, DC 20530 Telephone: (202) 514-3642 April 30, 2020 Austin Evers American Oversight 1030 15th Street, NW Suite B255 Washington, DC 20005 FOIA@americanoversight.org Re: DOJ-2018-006172 18-cv-2846 (D.D.C.) TAZ:JMS Dear Austin Evers: This is an interim response to your Freedom of Information Act (FOIA) request, dated and received in this Office on June 20, 2018, in which you requested email records containing specified search terms and search combinations, dating from March 6, 2017. This response is made on behalf of the Offices of the Attorney General (OAG) and Legal Policy (OLP). Please be advised that a search has been conducted on behalf of OAG and OLP. At this time, pursuant to the narrowing agreement set forth in the October 1, 2019 Joint Status Report, see ECF No. 27, this Office has processed an additional 913 pages of potentially responsive material, and the material that has been initially found to be responsive has been sent out on consultation. We will respond to you after the consultation process is complete. Additionally, we advised by letter dated March 31, 2020, that we processed potentially responsive material, that the material that was initially found to be responsive was sent out on consultation, and that we would respond to you after the consultation process was complete. For your information, the consultation process to which we referred in the March 31, 2020 response is now complete. As a result, I have determined that 147 pages are appropriate for release without excision, and copies are enclosed. Additionally, 125 pages containing records responsive to your request are being withheld in full pursuant to Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5). Exemption 5 pertains to certain inter- and intra- agency communications protected by the deliberative process and attorney work-product privileges. For your information, Congress excluded three discrete categories of law enforcement and national security records from the requirements of the FOIA. See 5 U.S.C. § 552(c) (2018). This response is limited to those records that are subject to the requirements of the FOIA. This is a standard notification that is given to all our requesters and should not be taken as an indication that excluded records do, or do not, exist. VERSIGHT -2If you have any questions regarding this response, please contact Michelle Jackson of the United States Attorney's Office for the District of Columbia, at (202) 252-7230. Sincerely, --==- . .... z·..::.r.::·:·::·--~-_--·------ .. Timothy Ziese Senior Supervisory Attorney Enclosures Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 1 of 43 4356 PageID #: FILED IN THE UNITED STATES DISTRICT COURT DISTRICT OF HAWAII IN THE UNITED STATES DISTRICT COURT 12:32 pm, Mar 15, 2017 SUE BEITIA, CLERK FOR THE DISTRICT OF HAWAI‘I STATE OF HAWAI‘I and ISMAIL ELSHIKH, Plaintiffs, vs. CV. NO. 17-00050 DKW-KSC ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER DONALD J. TRUMP, et al., Defendants. INTRODUCTION On January 27, 2017, the President of the United States issued Executive Order No. 13,769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” See 82 Fed. Reg. 8977 (Jan. 27, 2017). On March 6, 2017, the President issued another Executive Order, No. 13,780, identically entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” (the “Executive Order”). See 82 Fed. Reg. 13209 (Mar. 6, 2017). The Executive Order 1 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000001 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 2 of 43 4357 PageID #: revokes Executive Order No. 13,769 upon taking effect. 1 Exec. Order §§ 13, 14. Like its predecessor, the Executive Order restricts the entry of foreign nationals from specified countries and suspends entrants from the United States refugee program for specified periods of time. Plaintiffs State of Hawai‘i (“State”) and Ismail Elshikh, Ph.D. seek a nationwide temporary restraining order that would prohibit the Federal Defendants2 from “enforcing or implementing Sections 2 and 6 of the Executive Order” before it takes effect. Pls.’ Mot. for TRO 4, Mar. 8, 2017, ECF No. 65.3 Upon evaluation of the parties’ submissions, and following a hearing on March 15, 2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Accordingly, Plaintiffs’ Motion for TRO (ECF. No. 65) is granted for the reasons detailed below. 1 By its terms, the Executive Order becomes effective as of March 16, 2017 at 12:01 a.m., Eastern Daylight Time i.e., March 15, 2017 at 6:01 p.m. Hawaii Time. Exec. Order § 14. 2 Defendants in the instant action are: Donald J. Trump, in his official capacity as President of the United States; the U.S. Department of Homeland Security (“DHS”); John F. Kelly, in his official capacity as Secretary of DHS; the U.S. Department of State; Rex Tillerson, in his official capacity as Secretary of State; and the United States of America. 3 Plaintiffs filed a Second Amended Complaint for Declaratory and Injunctive Relief (“SAC”) on March 8, 2017 simultaneous with their Motion for TRO. SAC, ECF. No. 64. 2 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000002 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 3 of 43 4358 PageID #: BACKGROUND I. The President’s Executive Orders A. Executive Order No. 13,769 Executive Order No. 13,769 became effective upon signing on January 27, 2017. See 82 Fed. Reg. 8977. It inspired several lawsuits across the nation in the days that followed.4 Among those lawsuits was this one: On February 3, 2017, the State filed its complaint and an initial motion for TRO, which sought to enjoin, nationwide, Sections 3(c), 5(a) (c), and 5(e) of Executive Order No. 13,769. Pls.’ Mot. for TRO, Feb. 3, 2017, ECF No. 2. This Court did not rule on the State’s initial TRO motion because later that same day, the United States District Court for the Western District of Washington entered a nationwide preliminary injunction enjoining the Government from enforcing the same provisions of Executive Order No. 13,769 targeted by the State here. See Washington v. Trump, 2017 WL 462040. As such, the Court stayed this case, effective February 7, 2017, specifying that the stay would continue “as long as 4 See, e.g., Mohammed v. United States, No. 2:17-cv-00786-AB-PLA (C.D. Cal. Jan. 31, 2017); City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485-WHO (N.D. Cal. Jan. 31, 2017); Louhghalam v. Trump, Civil Action No. 17-cv-10154, 2017 WL 386550 (D. Mass. Jan. 29, 2017); Int’l Refugee Assistance Project v. Trump, No. 8:17-0361-TDC (D. Md. filed Feb. 7, 2017); Darweesh v. Trump, 17 Civ. 480 (AMD), 2017 WL 388504 (E.D.N.Y. Jan. 28, 2017); Aziz v. Trump, --- F. Supp. 3d ----, 2017 WL 580855 (E.D. Va. Feb. 13, 2017); Washington v. Trump, Case No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017), emergency stay denied, 847 F.3d 1151 (9th Cir. 2017). This list is not exhaustive. 3 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000003 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 4 of 43 4359 PageID #: the February 3, 2017 injunction entered in Washington v. Trump remain[ed] in full force and effect, or until further order of this Court.” ECF Nos. 27 & 32. On February 4, 2017, the Government filed an emergency motion in the Ninth Circuit Court of Appeals seeking a stay of the Washington TRO, pending appeal. 5 See Washington v. Trump, No. 17-35105 (9th Cir. Feb. 4, 2017). The Ninth Circuit heard oral argument on February 7, after which it denied the emergency motion via written Order dated February 9, 2017. See Case No. 17-35105, ECF Nos. 125 (Tr. of Hr’g), 134 (Filed Order for Publication at 847 F.3d 1151). On March 8, 2017, the Ninth Circuit granted the Government’s unopposed motion to voluntarily dismiss the appeal. See Order, No. 17-35105 (9th Cir. Mar. 8, 2017), ECF No. 187. As a result, the same sections of Executive Order No. 13,769 initially challenged by the State in the instant action remain enjoined as of the date of this Order. B. The New Executive Order Section 2 of the new Executive Order suspends from “entry into the United States” for a period of 90 days, certain nationals of six countries referred to in Section 217(a)(12) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 5 The Government also requested “an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal” on February 4, 2017 (Emergency Mot. to Stay, No. 17-35105 (9th Cir.), ECF No. 14), which the Ninth Circuit panel swiftly denied (Order, No. 17-35105 (9th Cir.), ECF No. 15). 4 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000004 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 5 of 43 4360 § 1101 et seq.: PageID #: Iran, Libya, Somalia, Sudan, Syria, and Yemen.6 8 U.S.C. § 1187(a)(12); Exec. Order § 2(c). The suspension of entry applies to nationals of these six countries who (1) are outside the United States on the new Executive Order’s effective date of March 16, 2017; (2) do not have a valid visa on that date, and (3) did not have a valid visa as of 5:00 p.m. Eastern Standard Time on January 27, 2017 (the date of the prior Executive Order, No. 13,769). Exec. Order § 3(a). The 90-day suspension does not apply to: (1) lawful permanent residents; (2) any foreign national admitted to or paroled into the United States on or after the Executive Order’s effective date (March 16, 2017); (3) any individual who has a document other than a visa, valid on the effective date of the Executive Order or issued anytime thereafter, that permits travel to the United States, such as an advance parole document; (4) any dual national traveling on a passport not issued by one of the six listed countries; (5) any foreign national traveling on a diplomatic-type or other specified visa; and (6) any foreign national who has been granted asylum, any refugee already admitted to the United States, or any individual granted withholding of removal, advance parole, or protection under the Convention Against Torture. See Exec. Order § 3(b). 6 Because of the “close cooperative relationship” between the United States and the Iraqi government, the Executive Order declares that Iraq no longer merits inclusion in this list of countries, as it was in Executive Order No. 13,769. Iraq “presents a special case.” Exec. Order § 1(g). 5 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000005 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 6 of 43 4361 PageID #: Under Section 3(c)’s waiver provision, foreign nationals of the six countries who are subject to the suspension of entry may nonetheless seek entry on a case-by-case basis. The Executive Order includes the following list of circumstances when such waivers “could be appropriate:” (i) the foreign national has previously been admitted to the United States for a continuous period of work, study, or other longterm activity, is outside the United States on the effective date of the Order, seeks to reenter the United States to resume that activity, and denial of reentry during the suspension period would impair that activity; (ii) the foreign national has previously established significant contacts with the United States but is outside the United States on the effective date of the Order for work, study, or other lawful activity; (iii) the foreign national seeks to enter the United States for significant business or professional obligations and the denial of entry during the suspension period would impair those obligations; (iv) the foreign national seeks to enter the United States to visit 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, and the denial of entry during the suspension period would cause undue hardship; (v) the foreign national is an infant, a young child or adoptee, an individual needing urgent medical care, or someone whose entry is otherwise justified by the special circumstances of the case; (vi) the foreign national has been employed by, or on behalf of, the United States Government (or is an eligible dependent of 6 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000006 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 7 of 43 4362 PageID #: such an employee) and the employee can document that he or she has provided faithful and valuable service to the United States Government; (vii) the foreign national is traveling for purposes related to an international organization designated under the International Organizations Immunities Act (IOAI), 22 U.S.C. § 288 et seq., traveling for purposes of conducting meetings or business with the United States Government, or traveling to conduct business on behalf of an international organization not designated under IOIA; (viii) the foreign national is a landed Canadian immigrant who applies for admission at a land border port of entry or a preclearance location located in Canada; or (ix) the foreign national is traveling as a United States Government sponsored exchange visitor. Exec. Order § 3(c). Section 6 of the Executive Order suspends the U.S. Refugee Admissions Program for 120 days. The suspension applies both to travel into the United States and to decisions on applications for refugee status for the same period. See Exec. Order § 6(a). It excludes refugee applicants who were formally scheduled for transit by the Department of State before the March 16, 2017 effective date. Like the 90-day suspension, the 120-day suspension includes a waiver provision that allows the Secretaries of State and DHS to admit refugee applicants on a case-by-case basis. See Exec. Order § 6(c). The Executive Order identifies examples of circumstances in which waivers may be warranted, including: where 7 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000007 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 8 of 43 4363 PageID #: the admission of the individual would allow the United States to conform its conduct to a pre-existing international agreement or denying admission would cause undue hardship. Exec. Order § 6(c). Unlike Executive Order No. 13,769, the new Executive Order does not expressly refer to an individual’s status as a “religious minority” or refer to any particular religion, and it does not include a Syria-specific ban on refugees. Section 1 states that the purpose of the Executive Order is to “protect [United States] citizens from terrorist attacks, including those committed by foreign nationals.” Section 1(h) identifies two examples of terrorism-related crimes committed in the United States by persons entering the country either “legally on visas” or “as refugees”: [1] In January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses. [2] [I]n October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was sentenced to 30 years in prison for attempting to use a weapon of mass destruction[.] Exec. Order § 1(h). By its terms, the Executive Order also represents a response to the Ninth Circuit’s decision in Washington v. Trump. See 847 F.3d 1151. According to the Government, it “clarifies and narrows the scope of Executive action regarding 8 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000008 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 9 of 43 4364 PageID #: immigration, extinguishes the need for emergent consideration, and eliminates the potential constitutional concerns identified by the Ninth Circuit.” See Notice of Filing of Executive Order 4 5, ECF No. 56. It is with this backdrop that we turn to consideration of Plaintiffs’ restraining order application. II. Plaintiffs’ Motion For TRO Plaintiffs’ Second Amended Complaint (ECF No. 64) and Motion for TRO (ECF No. 65) contend that portions of the new Executive Order suffer from the same infirmities as those provisions of Executive Order No. 13,769 enjoined in Washington, 847 F.3d 1151. Once more, the State asserts that the Executive Order inflicts constitutional and statutory injuries upon its residents, employers, and educational institutions, while Dr. Elshikh alleges injuries on behalf of himself, his family, and members of his Mosque. SAC ¶ 1. Plaintiffs allege that the Executive Order subjects portions of the State’s population, including Dr. Elshikh and his family, to discrimination in violation of both the Constitution and the INA, denying them their right, among other things, to associate with family members overseas on the basis of their religion and national origin. The State purports that the Executive Order has injured its institutions, 9 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000009 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 10 of 43 4365 PageID #: economy, and sovereign interest in maintaining the separation between church and state. SAC ¶¶ 4 5. According to Plaintiffs, the Executive order also results in “their having to live in a country and in a State where there is the perception that the Government has established a disfavored religion.” SAC ¶ 5. Plaintiffs assert that by singling out nationals from the six predominantly Muslim countries, the Executive Order causes harm by stigmatizing not only immigrants and refugees, but also Muslim citizens of the United States. Plaintiffs point to public statements by the President and his advisors regarding the implementation of a “Muslim ban,” which Plaintiffs contend is the tacit and illegitimate motivation underlying the Executive Order. See SAC ¶¶ 35 51. For example, Plaintiffs point to the following statements made contemporaneously with the implementation of Executive Order No. 13,769 and in its immediate aftermath: 48. In an interview on January 25, 2017, Mr. Trump discussed his plans to implement “extreme vetting” of people seeking entry into the United States. He remarked: “[N]o, it’s not the Muslim ban. But it’s countries that have tremendous terror. . . . [I]t’s countries that people are going to come in and cause us tremendous problems.” 49. Two days later, on January 27, 2017, President Trump signed an Executive Order entitled, “Protecting the Nation From Foreign Terrorist Entry into the United States.” 10 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000010 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 11 of 43 4366 PageID #: 50. The first Executive Order [No. 13,769] was issued without a notice and comment period and without interagency review. Moreover, the first Executive Order was issued with little explanation of how it could further its stated objective. 51. When signing the first Executive Order [No. 13,769], President Trump read the title, looked up, and said: “We all know what that means.” President Trump said he was “establishing a new vetting measure to keep radical Islamic terrorists out of the United States of America,” and that: “We don’t want them here.” . . . . 58. In a January 27, 2017 interview with Christian Broadcasting Network, President Trump said that persecuted Christians would be given priority under the first Executive Order. He said (once again, falsely): “Do you know if you were a Christian in Syria it was impossible, at least very tough to get into the United States? If you were a Muslim you could come in, but if you were a Christian, it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness, but they were chopping off the heads of everybody but more so the Christians. And I thought it was very, very unfair. So we are going to help them.” 59. The day after signing the first Executive Order [No. 13,769], President Trump’s advisor, Rudolph Giuliani, explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” 60. The President and his spokespersons defended the rushed nature of their issuance of the first Executive Order [No. 13,769] on January 27, 2017, by saying that their urgency was imperative to stop the inflow of dangerous persons to the United States. On January 30, 2017, President Trump tweeted: “If the ban were 11 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000011 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 12 of 43 4367 PageID #: announced with a one week notice, the ‘bad’ would rush into our country during that week.” In a forum on January 30, 2017 at George Washington University, White House spokesman Sean Spicer said: “At the end of the day, what was the other option? To rush it out quickly, telegraph it five days so that people could rush into this country and undermine the safety of our nation?” On February 9, 2017, President Trump claimed he had sought a one-month delay between signing and implementation, but was told by his advisors that “you can’t do that because then people are gonna pour in before the toughness.” SAC ¶¶ 48 51, 58 60 (footnotes and citations omitted). Plaintiffs also highlight statements by members of the Administration prior to the signing of the new Executive Order, seeking to tie its content to Executive Order No. 13,769 enjoined by the Washington TRO. In particular, they note that: On February 21, Senior Advisor to the President, Stephen Miller, told Fox News that the new travel ban would have the same effect as the old one. He said: “Fundamentally, you’re still going to have the same basic policy outcome for the country, but you’re going to be responsive to a lot of very technical issues that were brought up by the court and those will be addressed. But in terms of protecting the country, those basic policies are still going to be in effect.” SAC ¶ 74(a) (citing Miller: New order will be responsive to the judicial ruling; Rep. Ron DeSantis: Congress has gotten off to a slow start, The First 100 Days (Fox News television broadcast Feb. 21, 2017), transcript available at https://goo.gl/wcHvHH (rush transcript)). Plaintiffs argue that, in light of these and similar statements “where the President himself has repeatedly and publicly 12 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000012 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 13 of 43 4368 PageID #: espoused an improper motive for his actions, the President’s action must be invalidated.” Pls.’ Mem. in Supp. of Mot. for TRO 2, ECF No. 65-1. In addition to these accounts, Plaintiffs describe a draft report from the DHS, which they contend undermines the purported national security rationale for the Executive Order. See SAC ¶ 61 (citing SAC, Ex. 10, ECF No. 64-10). The February 24, 2017 draft report states that citizenship is an “unlikely indicator” of terrorism threats against the United States and that very few individuals from the seven countries included in Executive Order No. 13,769 had carried out or attempted to carry out terrorism activities in the United States. SAC ¶ 61 (citing SAC, Ex. 10, ECF No. 64-10). According to Plaintiffs, this and other evidence demonstrates the Administration’s pretextual justification for the Executive Order. Plaintiffs assert the following causes of action: (1) violation of the Establishment Clause of the First Amendment (Count I); (2) violation of the equal protection guarantees of the Fifth Amendment’s Due Process Clause on the basis of religion, national origin, nationality, or alienage (Count II); (3) violation of the Due Process Clause of the Fifth Amendment based upon substantive due process rights (Count III); (4) violation of the procedural due process guarantees of the Fifth Amendment (Count IV); (5) violation of the INA due to discrimination on the basis of nationality, and exceeding the President’s authority under Sections 1182(f) and 13 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000013 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 14 of 43 4369 PageID #: 1185(a) (Count V); (6) substantially burdening the exercise of religion in violation of the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 200bb-1(a) (Count VI); (7) substantive violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706 (2)(A) (C), through violations of the Constitution, INA, and RFRA (Count VII); and (8) procedural violation of the APA, 5 U.S.C. § 706 (2)(D) (Count VIII). Plaintiffs contend that these alleged violations of law have caused and continue to cause them irreparable injury. To that end, through their Motion for TRO, Plaintiffs seek to temporarily enjoin Defendants from enforcing and implementing Sections 2 and 6 of the Executive Order. Mot. for TRO 4, ECF No. 65. They argue that “both of these sections are unlawful in all of their applications:” Section 2 discriminates on the basis of nationality, Sections 2 and 6 exceed the President’s authority under 8 U.S.C. §§ 1182(f) and 1185(a), and both provisions are motivated by anti-Muslim animus. TRO Mem. 50, Dkt. No. 65-1. Moreover, Plaintiffs assert that both sections infringe “on the ‘due process rights’ of numerous U.S. citizens and institutions by barring the entry of non-citizens with whom they have close relationships.” TRO Mem. 50 (quoting Washington, 847 F.3d at 1166). 14 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000014 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 15 of 43 4370 PageID #: Defendants oppose the Motion for TRO. The Court held a hearing on the matter on March 15, 2017, before the Executive Order was scheduled to take effect. DISCUSSION I. Plaintiffs Have Demonstrated Standing At This Preliminary Phase A. Article III Standing Article III, Section 2 of the Constitution permits federal courts to consider only “cases” and “controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007). “Those two words confine ‘the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.’” Id. (quoting Flast v. Cohen, 392 U.S. 83, 95 (1968)). “[T]o satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 81 (2000) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 61 (1992)). “At bottom, ‘the gist of the question of standing’ is whether petitioners have ‘such a personal stake in the outcome of the controversy as to assure that concrete 15 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000015 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 16 of 43 4371 PageID #: adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination.’” City & Cty. of San Francisco , Catholic League for Religious & Civil Rights v. 624 F.3d 1043, 1048 (9th Cir. 2010) (en banc) (quoting Massachusetts, 549 U.S. at 517)). “At this very preliminary stage of the litigation, the [Plaintiffs] may rely on the allegations in their Complaint and whatever other evidence they submitted in support of their TRO motion to meet their burden.” Washington, 847 F.3d at 1159 (citing Lujan, 504 U.S. at 561). “With these allegations and evidence, the [Plaintiffs] must make a ‘clear showing of each element of standing.’” Townley v. Miller, Id. (quoting 722 F.3d 1128, 1133 (9th Cir. 2013), cert. denied, 134 S. Ct. 907 (2014)). At this preliminary stage of the proceedings, on the record presented, Plaintiffs meet the threshold Article III standing requirements. B. The State Has Standing The State alleges standing based both upon injuries to its proprietary interests and to its quasi-sovereign interests, i.e., in its role as parens patriae.7 Just as the 7 The State’s parens patriae theory focuses on the Executive Order subject[ing] citizens of Hawai‘i like Dr. Elshikh to discrimination and marginalization while denying all residents of the State the benefits of a pluralistic and inclusive society. Hawai‘i has a quasi-sovereign interest in ‘securing [its] residents from the harmful effects of discrimination.’ Alfred L. Snapp & Son v. Puerto Rico , 458 U.S. 592, 609 (1982). The [Executive] 16 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000016 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 17 of 43 4372 PageID #: Ninth Circuit panel in Washington concluded on a similar record that the alleged harms to the states’ proprietary interests as operators of their public universities were sufficient to support standing, the Court concludes likewise here. The Court does not reach the State’s alternative standing theory based on the protection of the interests of its citizens as parens patriae. See Washington, 847 F.3d at 1168 n.5 (“The States have asserted other proprietary interests and also presented an alternative standing theory based on their ability to advance the interests of their citizens as parens patriae. Because we conclude that the States’ proprietary interests as operators of their public universities are sufficient to support standing, we need not reach those arguments.”). Hawaii primarily asserts two proprietary injuries stemming from the Executive Order. First, the State alleges the impacts that the Executive Order will have on the University of Hawaii system, both financial and intangible. The University is an arm of the State. See Haw. Const. art. 10, §§ 5, 6; Haw. Rev. Stat. (“HRS”) § 304A-103. The University recruits students, permanent faculty, and visiting faculty from the targeted countries. See, e.g., Suppl. Decl. of Risa E. Dickson ¶¶ 6 8, Mot. for TRO, Ex. D-1, ECF No. 66-6. Students or faculty Order also harms Hawai‘i by debasing its culture and tradition of ethnic diversity and inclusion. TRO Mem. 48, ECF No. 65-1. 17 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000017 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 18 of 43 4373 PageID #: suspended from entry are deterred from studying or teaching at the University, now and in the future, irrevocably damaging their personal and professional lives and harming the educational institutions themselves. See id. There is also evidence of a financial impact from the Executive Order on the University system. The University recruits from the six affected countries. It currently has twenty-three graduate students, several permanent faculty members, and twenty-nine visiting faculty members from the six countries listed. Suppl. Dickson Decl. ¶ 7. The State contends that any prospective recruits who are without visas as of March 16, 2017 will not be able to travel to Hawaii to attend the University. As a result, the University will not be able to collect the tuition that those students would have paid. Suppl. Dickson Decl. ¶ 8 (“Individuals who are neither legal permanent residents nor current visa holders will be entirely precluded from considering our institution.”). These individuals’ spouses, parents, and children likewise would be unable to join them in the United States. The State asserts that the Executive Order also risks “dissuad[ing] some of [the University’s] current professors or scholars from continuing their scholarship in the United States and at [the University].” Suppl. Dickson Decl. ¶ 9. The State argues that the University will also suffer non-monetary losses, including damage to the collaborative exchange of ideas among people of different 18 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000018 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 19 of 43 4374 PageID #: religions and national backgrounds on which the State’s educational institutions depend. Suppl. Dickson Decl. ¶¶ 9 10, ECF no. 66-6; see also Original Dickson Decl. ¶ 13, Mot. for TRO, Ex. D-2, ECF, 66-7; SAC ¶ 94. This will impair the University’s ability to recruit and accept the most qualified students and faculty, undermine its commitment to being “one of the most diverse institutions of higher education” in the world, Suppl. Dickson Decl. ¶ 11, and grind to a halt certain academic programs, including the University’s Persian Language and Culture program, id. ¶ 8. Cf. Washington, 847 F.3d at 1160 (“[The universities] have a mission of ‘global engagement’ and rely on such visiting students, scholars, and faculty to advance their educational goals.”). These types of injuries are nearly indistinguishable from those found to support standing in the Ninth Circuit’s decision in Washington. See 847 F.3d at 1161 (“The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they 19 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000019 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 20 of 43 4375 PageID #: could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.”). The second proprietary injury alleged Hawaii alleges is to the State’s main economic driver: tourism. The State contends that the Executive Order will “have the effect of depressing international travel to and tourism in Hawai‘i,” which “directly harms Hawaii’s businesses and, in turn, the State’s revenue.” SAC ¶ 100, ECF No. 64. See also Suppl. Decl. of Luis P. Salaveria ¶¶ 6 10, Mot. for TRO, Ex. C-1, ECF No. 66-4 (“I expect, given the uncertainty the new executive order and its predecessor have caused to international travel generally, that these changing policies may depress tourism, business travel, and financial investments in Hawaii.”). The State points to preliminary data from the Hawaii Tourism Authority, which suggests that during the interval of time that the first Executive Order was in place, the number of visitors to Hawai‘i from the Middle East dropped (data including visitors from Iran, Iraq, Syria and Yemen). See Suppl. Decl. of George Szigeti, ¶¶ 5 8, Mot. for TRO, Ex. B-1, ECF No. 66-2; see also SAC ¶ 100 (identifying 278 visitors in January 2017, compared to 348 visitors from that same region in January 2016).8 Tourism accounted for $15 billion in spending in 2015, 8 This data relates to the prior Executive Order No. 13,769. At this preliminary stage, the Court looks to the earlier order’s effect on tourism in order to gauge the economic impact of the new Executive Order, while understanding that the provisions of the two differ. Because the new 20 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000020 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 21 of 43 4376 and a decline in tourism has a direct effect on the State’s revenue. See PageID #: SAC ¶ 18. Because there is preliminary evidence that losses of current and future revenue are traceable to the Executive Order, this injury to the State’s proprietary interest also appears sufficient to confer standing. Cf. Texas v. United States, 809 F.3d 134, 155 56 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (holding that the “financial loss[es]” that Texas would bear, due to having to grant drivers licenses, constituted a concrete and immediate injury for standing purposes). For purposes of the instant Motion for TRO, the State has preliminarily demonstrated that: (1) its universities will suffer monetary damages and intangible harms; (2) the State’s economy is likely to suffer a loss of revenue due to a decline in tourism; (3) such harms can be sufficiently linked to the Executive Order; and (4) the State would not suffer the harms to its proprietary interests in the absence of implementation of the Executive Order. Accordingly, at this early stage of the litigation, the State has satisfied the requirements of Article III standing. 9 Executive Order has yet to take effect, its precise economic impact cannot presently be determined. 9 To the extent the Government argues that the State does not have standing to bring an Establishment Clause violation on its own behalf, the Court does not reach this argument. Cf. Washington, 847 F.3d at 1160 n.4 (“The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. Even if we assume that States lack such rights, an issue we need not decide, that is irrelevant in this case because the States are asserting the rights of their students and professors. Male doctors do not have personal rights in abortion and yet any physician may assert those rights on behalf of his female patients.” (citing Singleton v. Wulff, 428 U.S. 106, 118 (1976))). Unlike in Washington where there was no 21 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000021 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 22 of 43 4377 C. PageID #: Dr. Elshikh Has Standing Dr. Elshikh is an American citizen of Egyptian descent and has been a resident of Hawai‘i for over a decade. Declaration of Ismail Elshikh ¶ 1, Mot. for TRO, Ex. A, ECF No. 66-1. He is the Imam of the Muslim Association of Hawai‘i and a leader within Hawaii’s Islamic community. Elshikh Decl. ¶ 2. Dr. Elshikh’s wife is of Syrian descent, and their young children are American citizens. Dr. Elshikh and his family are Muslim. Elshikh Decl. ¶¶ 1, 3. His mother-in-law, also Muslim, is a Syrian national without a visa, who last visited the family in Hawaii in 2005. Elshikh Decl. ¶¶ 4 5. In September 2015, Dr. Elshikh’s wife filed an I-130 Petition for Alien Relative on behalf of her mother. On January 31, 2017, Dr. Elshikh called the National Visa Center and learned that his mother-in-law’s visa application had been put on hold and would not proceed to the next stage of the process because of the implementation of Executive Order No. 13,769. Elshikh Decl. ¶ 4. Thereafter, on March 2, 2017, during the pendency of the nationwide injunction imposed by Washington, Dr. Elshikh received an email from the National Visa Center advising that his mother-in-law’s visa application had progressed to the next stage and that her interview would be scheduled at an embassy overseas. Although no date was individual plaintiff, Dr. Elshikh has standing to assert an Establishment Clause violation, as discussed herein. 22 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000022 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 23 of 43 4378 PageID #: given, the communication stated that most interviews occur within three months. Elshikh Decl. ¶ 4. Dr. Elshikh fears that although she has made progress toward obtaining a visa, his mother-in-law will be unable to enter the country if the new Executive Order is implemented. Elshikh Decl. ¶ 4. According to Plaintiffs, despite her pending visa application, Dr. Elshikh’s mother-in-law would be barred in the short-term from entering the United States under the terms of Section 2(c) of the Executive Order, unless she is granted a waiver, because she is not a current visa holder. Dr. Elshikh has standing to assert his claims, including an Establishment Clause violation. Courts observe that the injury-in-fact prerequisite can be “particularly elusive” in Establishment Clause cases because plaintiffs do not typically allege an invasion of a physical or economic interest. Despite that, a plaintiff may nonetheless show an injury that is sufficiently concrete, particularized, and actual to confer standing. v. Los Angeles Cty., See Catholic League, 624 F.3d at 1048 49; Vasquez 487 F.3d 1246, 1250 (9th Cir. 2007) (“The concept of a ‘concrete’ injury is particularly elusive in the Establishment Clause context.”). “The standing question, in plain English, is whether adherents to a religion have standing to challenge an official condemnation by their government of their religious views[.] Their ‘personal stake’ assures the ‘concrete adverseness’ 23 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000023 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 24 of 43 4379 required.” Catholic League, PageID #: 624 F.3d at 1048 49. In Establishment Clause cases [e]ndorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community. Disapproval sends the opposite message.” Plaintiffs aver that not only does the resolution make them feel like second-class citizens, but that their participation in the political community will be chilled by the [government’s] hostility to their church and their religion. Id. at 1048 49 (quoting Lynch v. Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J., concurring)). Dr. Elshikh attests that he and his family suffer just such injuries here. He declares that the effects of the Executive Order are “devastating to me, my wife and children.” Elshikh Decl. ¶ 6, ECF No. 66-1. Like his children, Dr. Elshikh is “deeply saddened by the message that [both Executive Orders] convey that a broad travel-ban is ‘needed’ to prevent people from certain Muslim countries from entering the United States.” Elshikh Decl. ¶ 1 (“Because of my allegiance to America, and my deep belief in the American ideals of democracy and equality, I am deeply saddened by the passage of the Executive Order barring nationals from now-six Muslim majority countries from entering the United States.”); id. ¶ 3 ([“My children] are deeply affected by the knowledge that the United States their own country would discriminate against individuals who are of the same ethnicity as them, including members of their own family, and who 24 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000024 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 25 of 43 4380 PageID #: hold the same religious beliefs. They do not fully understand why this is happening, but they feel hurt, confused, and sad.”). “Muslims in the Hawai‘i Islamic community feel that the new Executive Order targets Muslim citizens because of their religious views and national origin. Dr. Elshikh believes that, as a result of the new Executive Order, he and members of the Mosque will not be able to associate as freely with those of other faiths.” SAC ¶ 90. These injuries are sufficiently personal, concrete, particularized, and actual to confer standing in the Establishment Clause context. The final two aspects of Article III standing causation and redressability are also satisfied. Dr. Elshikh’s injuries are traceable to the new Executive Order and, if Plaintiffs prevail, a decision enjoining portions of the Executive Order would redress that injury. See Catholic League, 624 F.3d at 1053. At this preliminary stage of the litigation, Dr. Elshikh has accordingly carried his burden to establish standing under Article III. II. Ripeness “While standing is primarily concerned with who is a proper party to litigate a particular matter, ripeness addresses when litigation may occur.” Lee v. Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997). “[I]n many cases, ripeness coincides squarely with standing’s injury in fact prong.” Thomas v. Anchorage Equal Rights Comm’n , 25 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000025 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 26 of 43 4381 PageID #: 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc). In fact, the ripeness inquiry is often “characterized as standing on a timeline.” Id. “A claim is not ripe for adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Texas v. United States, Thomas v. Union Carbide Agric. Prods. Co., 523 U.S. 296, 300 (1998) (quoting 473 U.S. 568, 580 81 (1985)). The Government argues that “the only concrete injury Elshikh alleges is that the Order ‘will prevent [his] mother-in-law’ a Syrian national who lacks a visa from visiting Elshikh and his family in Hawaii.” These claims are not ripe, according to the Government, because there is a visa waiver process that Elshikh’s mother-in-law has yet to even initiate. Govt. Mem. in Opp’n to Mot. for TRO (citing SAC ¶ 85), ECF No. 145. The Government’s premise is not true. Dr. Elshikh alleges direct, concrete injuries to both himself and his immediate family that are independent of his mother-in-law’s visa status. See, e.g., SAC ¶¶ 88 90; Elshikh Decl. ¶¶ 1, 3.10 These alleged injuries have already occurred and will continue to occur once the 10 There is no dispute that Dr. Elshikh’s mother-in-law does not currently possess a valid visa, would be barred from entering as a Syrian national by Section 2(c) of the Executive Order, and has not yet applied for a waiver under Section 3(c) of the Executive Order. Since the Executive Order is not yet effective, it is difficult to see how she could. None of these propositions, however, alter the Court’s finding that Dr. Elshikh has sufficiently established, at this preliminary stage, that he has suffered an injury-in-fact separate and apart from his mother-in-law that is sufficiently concrete, particularized, and actual to confer standing. 26 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000026 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 27 of 43 4382 PageID #: Executive Order is implemented and enforced the injuries are not contingent ones. Cf. 281 Care Comm. v. Arneson, 638 F.3d 621, 631 (8th Cir. 2011) (“Plaintiffs’ alleged injury is not based on speculation about a particular future prosecution or the defeat of a particular ballot question. . . . Here, the issue presented requires no further factual development, is largely a legal question, and chills allegedly protected First Amendment expression.”); see also Arizona Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003) (“[W]hen the threatened enforcement effort implicates First Amendment [free speech] rights, the inquiry tilts dramatically toward a finding of standing.”). The Court turns to the merits of Plaintiffs’ Motion for TRO. III. Legal Standard: Preliminary Injunctive Relief The underlying purpose of a TRO is to preserve the status quo and prevent irreparable harm before a preliminary injunction hearing is held. Foods, Granny Goose 415 U.S. 423, 439 (1974); see also Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130 31 (9th Cir. 2006). The standard for issuing a temporary restraining order is substantially identical to the standard for issuing a preliminary injunction. Sales Co. v. John D. Brush & Co., See Stuhlbarg Int’l 240 F.3d 832, 839 n.7 (9th Cir. 2001). A “plaintiff seeking a preliminary injunction must establish that he is likely to succeed 27 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000027 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 28 of 43 4383 PageID #: on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citation omitted). “[I]f a plaintiff can only show that there are ‘serious questions going to the merits’ a lesser showing than likelihood of success on the merits then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor,’ and the other two Winter factors are satisfied.” Inc. v. Greenpeace, Inc., Shell Offshore, 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (emphasis by Shell Offshore)). For the reasons that follow, Plaintiffs have met this burden here. IV. Analysis of TRO Factors: Likelihood of Success on the Merits The Court turns to whether Plaintiffs sufficiently establish a likelihood of success on the merits of their Count I claim that the Executive Order violates the Establishment Clause of the First Amendment. Because a reasonable, objective observer enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, 28 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000028 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 29 of 43 4384 PageID #: in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.11 A. Establishment Clause “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” Larson v. Valente, 456 U.S. 228, 244 (1982). To determine whether the Executive Order runs afoul of that command, the Court is guided by the three-part test for Establishment Clause claims set forth in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971). According to Lemon, government action (1) must have a primary secular purpose, (2) may not have the principal effect of advancing or inhibiting religion, and (3) may not foster excessive entanglement with religion. Id. “Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice.” v. Rio Linda Union Sch. Dist., Newdow 597 F.3d 1007, 1076 77 (9th Cir. 2010). Because the Executive Order at issue here cannot survive the secular purpose prong, the Court does not reach the balance of the criteria. See id . (noting that it is unnecessary to reach the second or third Lemon criteria if the challenged law or practice fails the first test). 11 The Court expresses no views on Plaintiffs’ due-process or INA-based statutory claims. 29 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000029 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 30 of 43 4385 B. PageID #: The Executive Order’s Primary Purpose It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order unlike its predecessor contain any term or phrase that can be reasonably characterized as having a religious origin or connotation. Indeed, the Government defends the Executive Order principally because of its religiously neutral text “[i]t applies to six countries that Congress and the prior Administration determined posed special risks of terrorism. [The Executive Order] applies to all individuals in those countries, regardless of their religion.” Gov’t. Mem. in Opp’n 40. The Government does not stop there. By its reading, the Executive Order could not have been religiously motivated because “the six countries represent only a small fraction of the world’s 50 Muslim-majority nations, and are home to less than 9% of the global Muslim population . . . [T]he suspension covers every national of those countries, including millions of non-Muslim individuals[.]” Gov’t. Mem. in Opp’n 42. The illogic of the Government’s contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed. The Court declines to relegate its Establishment 30 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000030 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 31 of 43 4386 Clause analysis to a purely mathematical exercise. See Aziz, PageID #: 2017 WL 580855, at *9 (rejecting the argument that “the Court cannot infer an anti-Muslim animus because [Executive Order No. 13,769] does not affect all, or even most, Muslims,” because “the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefficient the execution” (citation omitted)). Equally flawed is the notion that the Executive Order cannot be found to have targeted Islam because it applies to all individuals in the six referenced countries. It is undisputed, using the primary source upon which the Government itself relies, that these six countries have overwhelmingly Muslim populations that range from 90.7% to 99.8%.12 It would therefore be no paradigmatic leap to conclude that targeting these countries likewise targets Islam. Certainly, it would be inappropriate to conclude, as the Government does, that it does not. The Government compounds these shortcomings by suggesting that the Executive Order’s neutral text is what this Court must rely on to evaluate purpose. Govt. Mem. in Opp’n at 42 43 (“[C]ourts may not ‘look behind the exercise of [Executive] discretion’ taken ‘on the basis of a facially legitimate and bona fide 12 See Pew-Templeton Global Religious Futures Project, Muslim Population by Country (2010), available at http://www.globalreligiousfutures.org/religions/muslims. 31 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000031 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 32 of 43 4387 PageID #: reason.’”). Only a few weeks ago, the Ninth Circuit commanded otherwise: “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Washington, 847 F.3d at 1167 68 (citing Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254 55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); and Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decisionmakers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose)). The Supreme Court has been even more emphatic: courts may not “turn a blind eye to the context in which [a] policy arose.” Liberties Union of Ky., McCreary Cty. v. Am. Civil 545 U.S. 844, 866 (2005) (citation and quotation signals omitted).13 “[H]istorical context and ‘the specific sequence of events leading up 13 In McCreary, the Supreme Court examined whether the posting of successive Ten Commandments displays at two county courthouses violated the Establishment Clause. 545 U.S. at 850 82. 32 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000032 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 33 of 43 4388 to’” the adoption of a challenged policy are relevant considerations. also Aziz, Id. PageID #: at 862; see 2017 WL 580855, at *7. A review of the historical background here makes plain why the Government wishes to focus on the Executive Order’s text, rather than its context. The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor. For example In March 2016, Mr. Trump said, during an interview, “I think Islam hates us.” Mr. Trump was asked, “Is there a war between the West and radical Islam, or between the West and Islam itself?” He replied: “It’s very hard to separate. Because you don’t know who’s who.” SAC ¶ 41 (citing Anderson Cooper 360 Degrees: Exclusive Interview With Donald Trump at (CNN television broadcast Mar. 9, 2016, 8:00 PM ET), transcript available https://goo.gl/y7s2kQ)). In that same interview, Mr. Trump stated: “But there’s a tremendous hatred. And we have to be very vigilant. We have to be very careful. And we can’t allow people coming into this country who have this hatred of the United States. . . [a]nd of people that are not Muslim.” Plaintiffs allege that “[l]ater, as the presumptive Republican nominee, Mr. Trump began using facially neutral language, at times, to describe the Muslim ban.” SAC ¶ 42. For example, they point to a July 24, 2016 interview: 33 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000033 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 34 of 43 4389 PageID #: Mr. Trump was asked: “The Muslim ban. I think you’ve pulled back from it, but you tell me.” Mr. Trump responded: “I don’t think it’s a rollback. In fact, you could say it’s an expansion. I’m looking now at territories. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m okay with that, because I’m talking territory instead of Muslim.” SAC ¶ 44; Ex. 7 (Meet the Press (NBC television broadcast July 24, 2016), transcript available at https://goo.gl/jHc6aU). And during an October 9, 2016 televised presidential debate, Mr. Trump was asked: “Your running mate said this week that the Muslim ban is no longer your position. Is that correct? And if it is, was it a mistake to have a religious test?” Mr. Trump replied: “The Muslim ban is something that in some form has morphed into a[n] extreme vetting from certain areas of the world.” When asked to clarify whether “the Muslim ban still stands,” Mr. Trump said, “It’s called extreme vetting.” SAC ¶ 45 (citing The American Presidency Project, Presidential Debates: Presidential Debate at Washington University in St. Louis, Missouri available at (Oct. 9, 2016), https://goo.gl/iIzf0A)). The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.” Govt. Opp’n at 40 (citing McCreary, 545 U.S. at 862). The Government need not fear. The remarkable facts at issue here require no such 34 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000034 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 35 of 43 4390 PageID #: impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.[]” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order: Rudolph Giuliani explained on television how the Executive Order came to be. He said: “When [Mr. Trump] first announced it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a commission together. Show me the right way to do it legally.’” SAC ¶ 59, Ex. 8. On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74. These plainly-worded statements,14 made in the months leading up to and contemporaneous with the signing of the Executive Order, and, in many cases, made 14 There are many more. See, e.g., Br. of The Roderick and Solange MacArthur Justice Center as Amicus Curiae in Supp. of Pls.’ Mot. for TRO, ECF No. 204, at 19-20 (“It’s not unconstitutional keeping people out, frankly, and until we get a hold of what’s going on. And then if you look at Franklin Roosevelt, a respected president, highly respected. Take a look at Presidential proclamations back a long time ago, 2525, 2526, and 2527 what he was doing with Germans, Italians, and Japanese because he had to do it. Because look we are at war with radical Islam.”) 35 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000035 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 36 of 43 4391 PageID #: by the Executive himself, betray the Executive Order’s stated secular purpose. Any reasonable, objective observer would conclude, as does the Court for purposes of the instant Motion for TRO, that the stated secular purpose of the Executive Order is, at the very least, “secondary to a religious objective” of temporarily suspending the entry of Muslims. See McCreary, 545 U.S. at 864.15 To emphasize these points, Plaintiffs assert that the stated national security reasons for the Executive Order are pretextual. Two examples of such pretext include the security rationales set forth in Section 1(h): “[I]n January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses.” [Exec. Order] § 1(h). “And in October 2014, a native of Somalia who had been brought to the United States as a child refugee and later became a naturalized United States citizen was (quoting Michael Barbaro and Alan Rappeport, In Testy Exchange, Donald Trump Interrupts and ‘Morning Joe’ Cuts to Commercial, New York Times (Dec. 8, 2015), available at https://www.nytimes.com/politics/first-draft/2015/12/08/in-testy-exchange-donaldtrump-interrup ts-and-morning-joe-cuts-to-commercial/)); Br. of Muslim Advocates et al. as Amici Curiae in Supp. of Pls.' Mot. for TRO, ECF No. 198, at 10-11 (“On June 13, 2016, after the attack on a nightclub in Orlando, Florida, Mr. Trump said in a speech: ‘I called for a ban after San Bernardino, and was met with great scorn and anger, but now many are saying I was right to do so.’ Mr. Trump then specified that the Muslim ban would be ‘temporary,’ ‘and apply to certain ‘areas of the world when [sic] there is a proven history of terrorism against the United States, Europe or our allies, until we understand how to end these threats.’”) (quoting Transcript: Donald Trump’s national security speech, available at http://www.politico.com/story/2016/06/ transcript-donald-trump-national-security-speech-22427). 15 This Court is not the first to examine these issues. In Aziz v. Trump, United States District Court Judge Leonie Brinkema determined that plaintiffs were likely to succeed on the merits of their Establishment Clause claim as it related to Executive Order No. 13,769. Accordingly, Judge Brinkema granted the Commonwealth of Virginia’s motion for preliminary injunction. Aziz v. Trump, ___ F. Supp. 3d ___, 2017 WL 580855, at *7 *10 (E.D. Va. Feb. 13, 2017). 36 A I A PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000036 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 37 of 43 4392 PageID #: sentenced to 30 years in prison for attempting to use a weapon of mass destruction[.]” Id. Iraq is no longer included in the ambit of the travel ban, id., and the Order states that a waiver could be granted for a foreign national that is a “young child.” Id. § 3(c)(v). TRO Mem. 13. Other indicia of pretext asserted by Plaintiffs include the delayed timing of the Executive Order, which detracts from the national security urgency claimed by the Administration, and the Executive Order’s focus on nationality, which could have the paradoxical effect of “bar[ring] entry by a Syrian national who has lived in Switzerland for decades, but not a Swiss national who has immigrated to Syria during its civil war,” revealing a “gross mismatch between the [Executive] Order’s ostensible purpose and its implementation and effects.” Pls.’ Reply 20 (citation omitted). While these additional assertions certainly call the motivations behind the Executive Order into greater question,16 they are not necessary to the Court’s Establishment Clause determination. See Aziz, 2017 WL 580855, at *8 (the Establishment Clause concerns addressed by the district court’s order “do not involve an assessment of the merits of the president’s national security judgment. Instead, the question is whether [Executive Order No. 13,769] was animated by 16 See also Br. of T.A., a U.S. Resident of Yemeni Descent, as Amicus Curiae in Supp. of Pls.’ Mot. for TRO, ECF No. 200, at 15-25 (detailing evidence contrary to the Executive Order’s national security justifications). 37 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000037 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 38 of 43 4393 PageID #: national security concerns at all, as opposed to the impermissible notion of, in the context of entry, disfavoring one religious group, and in the context of refugees, favoring another religious group”). Nor does the Court’s preliminary determination foreclose future Executive action. As the Supreme Court noted in McCreary, in preliminarily enjoining the third iteration of a Ten Commandments display, “we do not decide that the [government’s] past actions forever taint any effort on their part to deal with the subject matter.” Bloomfield, 841 McCreary, 545 U.S. at 873 74; see also Felix v. City of F.3d 848, 863 (10th Cir. 2016) (“In other words, it is possible that a government may begin with an impermissible purpose, or create an unconstitutional effect, but later take affirmative actions to neutralize the endorsement message so that “adherence to a religion [is not] relevant in any way to a person’s standing in the political community.” (quoting Lynch v. Donnelly, 465 U.S. 668, 687 (1984) (O’Connor, J., concurring))). Here, it is not the case that the Administration’s past conduct must forever taint any effort by it to address the security concerns of the nation. Based upon the current record available, however, the Court cannot find the actions taken during the interval between revoked Executive Order No. 13,769 and the new Executive Order to be “genuine changes in constitutionally significant 38 AMERICAN PVERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000038 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 39 of 43 4394 conditions.” McCreary, PageID #: 545 U.S. at 874.17 The Court recognizes that “purpose needs to be taken seriously under the Establishment Clause and needs to be understood in light of context; an implausible claim that governmental purpose has changed should not carry the day in a court of law any more than in a head with common sense.” Id. Yet, context may change during the course of litigation, and the Court is prepared to respond accordingly. Last, the Court emphasizes that its preliminary assessment rests on the peculiar circumstances and specific historical record present here. Cf. Aziz, 2017 WL 580855, at *9 (“The Court’s conclusion rests on the highly particular ‘sequence of events’ leading to this specific [Executive Order No. 13,769] and the dearth of evidence indicating a national security purpose. The evidence in this record focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani 17 The Tenth Circuit asked: “What would be enough to meet this standard?” The case law does not yield a ready answer. But from the above principles we conclude that a government cure should be (1) purposeful, (2) public, and (3) at least as persuasive as the initial endorsement of religion. It should be purposeful enough for an objective observer to know, unequivocally, that the government does not endorse religion. It should be public enough so that people need not burrow into a difficult-to-access legislative record for evidence to assure themselves that the government is not endorsing a religious view. And it should be persuasive enough to countermand the preexisting message of religious endorsement. Felix, 841 F.3d 863 64. 39 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000039 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 40 of 43 4395 PageID #: established between those statements and the [Executive Order].”) (citing McCreary, V. 545 U.S. at 862). Analysis of TRO Factors: Irreparable Harm Dr. Elshikh has made a preliminary showing of direct, concrete injuries to the exercise of his Establishment Clause rights. See, e.g., SAC ¶¶ 88 90; Elshikh Decl. ¶¶ 1, 3. These alleged injuries have already occurred and likely will continue to occur upon implementation of the Executive Order. Indeed, irreparable harm may be presumed with the finding of a violation of the First Amendment. See Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)); see also Washington, 847 F.3d at 1169 (citing Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”)) (additional citations omitted). Because Dr. Elshikh is likely to succeed on the merits of his Establishment Clause claim, the Court finds that the second factor of the Winter test is satisfied that Dr. Elshikh is likely to suffer irreparable injury in the absence of a TRO. 40 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000040 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 41 of 43 4396 VI. PageID #: Analysis of TRO Factors: The Balance of Equities and Public Interest Weigh in Favor of Granting Emergency Relief The final step in determining whether to grant the Plaintiffs’ Motion for TRO is to assess the balance of equities and examine the general public interests that will be affected. Here, the substantial controversy surrounding this Executive Order, like its predecessor, illustrates that important public interests are implicated by each party’s positions. See Washington, 847 F.3d at 1169. For example, the Government insists that the Executive Order is intended “to protect the Nation from terrorist activities by foreign nationals admitted to the United States[.]” Exec. Order, preamble. National security is unquestionably important to the public at large. Plaintiffs and the public, on the other hand, have a vested interest in the “free flow of travel, in avoiding separation of families, and in freedom from discrimination.” Washington, 847 F.3d at 1169 70. As discussed above, Plaintiffs have shown a strong likelihood of succeeding on their claim that the Executive Order violates First Amendment rights under the Constitution. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Melendres, 695 F.3d at 1002 (emphasis added) (citing Elrod, 427 U.S. at 373); Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“[E]nforcement of an unconstitutional law is always contrary to the public 41 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000041 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 42 of 43 4397 PageID #: interest.” (citing Lamprecht v. FCC, 958 F.2d 382, 390 (D.C. Cir. 1992); G & V Lounge v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994). When considered alongside the constitutional injuries and harms discussed above, and the questionable evidence supporting the Government’s national security motivations, the balance of equities and public interests justify granting the Plaintiffs’ TRO. See Aziz, 2017 WL 580855, at * 10. Nationwide relief is appropriate in light of the likelihood of success on the Establishment Clause claim. CONCLUSION Based on the foregoing, Plaintiffs’ Motion for TRO is hereby GRANTED. TEMPORARY RESTRAINING ORDER It is hereby ADJUDGED, ORDERED, and DECREED that: Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court. No security bond is required under Federal Rule of Civil Procedure 65(c). 42 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000042 Case 1:17 cv 00050 DKW KSC Document 219 Filed 03/15/17 Page 43 of 43 4398 PageID #: The Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this order be filed. Pursuant to Federal Rule of Civil Procedure 65(b)(2), the Court intends to set an expedited hearing to determine whether this Temporary Restraining Order should be extended. The parties shall submit a stipulated briefing and hearing schedule for the Court’s approval forthwith. IT IS SO ORDERED. Dated: March 15, 2017 at Honolulu, Hawai‘i. 1>-"f,;s ,PlsrFt ~"{ r'-; • <> /' } '~ \ 'c~◊ " ~M■~~ <><- De ~ ._ t... so ... n~------- 11"' United States District Judge State of Hawaii, et al. v. Trump, et al.; CV 17-00050 DKW-KSC; ORDER GRANTING MOTION FOR TEMPORARY RESTRAINING ORDER 43 VERSIGHT Document ID: 0.7.22688.6324-000001 DOJ-18-0367-A-000043 (1 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 1, Page 1 of 1 FILED MAR 1 5 201 7 Washington v. Trump, No. 17 35105 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS REINHARDT, J., concurring in the denial of en banc rehearing: I concur in our court’s decision regarding President Trump’s first Executive Order the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them. AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000044 (2 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 1 of 26 FILED MAR 1 5 201 7 MOLLY C. DWYER, CLERK Washington v. Trump, No. 17-35105 (Motions Panel February 9, 2017) U.S. COURT OF APPEALS BYBEE, Circuit Judge, with whom KOZINSKI, CALLAHAN, BEA, and IKUTA, Circuit Judges, join, dissenting from the denial of reconsideration en banc. I regret that we did not decide to reconsider this case en banc for the purpose of vacating the panel’s opinion. We have an obligation to correct our own errors, particularly when those errors so confound Supreme Court and Ninth Circuit precedent that neither we nor our district courts will know what law to apply in the future. The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order,1 the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993). 1 Our personal views are of no consequence. I note this only to emphasize that I have written this dissent to defend an important constitutional principle that the political branches, informed by foreign affairs and national security considerations, control immigration subject to limited judicial review and not to defend the administration’s policy. VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000045 (3 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 2 of 26 This is not to say that presidential immigration policy concerning the entry of aliens at the border is immune from judicial review, only that our review is limited by Kleindienst v. Mandel, 408 U.S. 753 (1972) and the panel held that limitation inapplicable. I dissent from our failure to correct the panel’s manifest error. I In this section I provide background on the source of Congress’s and the President’s authority to exclude aliens, the Executive Order at issue here, and the proceedings in this case. The informed reader may proceed directly to Part II. A “The exclusion of aliens is a fundamental act of sovereignty.” United States ex rel. Knauffv. Shaughnessy, 338 U.S. 537, 542 (1950); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982). Congress has the principal power to control the nation’s borders, a power that follows naturally from its power “[t]o establish an uniform rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4, and from its authority to “regulate Commerce with foreign Nations,” id. art. I, § 8, cl. 3, and to “declare War,” id. art. I, § 8, cl. 11. See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003); Harisiades v. Shaughnessy, 342 U.S. 580, 588 89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations [and] the war power . . . .”). The 2 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000046 (4 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 3 of 26 President likewise has some constitutional claim to regulate the entry of aliens into the United States. “Although the source of the President’s power to act in foreign affairs does not enjoy any textual detail, the historical gloss on the ‘executive Power’ vested in Article II of the Constitution has recognized the President’s ‘vast share of responsibility for the conduct of our foreign relations.’” Garamendi, 539 U.S. at 414 (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 11 (1952) (Frankfurter, J., concurring)). The foreign policy powers of the presidency derive from the President’s role as “Commander in Chief,” U.S. Const. art. II, § 2, cl. 1, his right to “receive Ambassadors and other public Ministers,” id. art. II, § 3, and his general duty to “take Care that the Laws be faithfully executed,” id. See Garamendi, 539 U.S. at 414. The “power of exclusion of aliens is also inherent in the executive.” Knauff, 338 U.S. at 543. In the Immigration and Nationality Act of 1952, Congress exercised its authority to prescribe the terms on which aliens may be admitted to the United States, the conditions on which they may remain within our borders, and the requirements for becoming naturalized U.S. citizens. 8 U.S.C. § 1101 et seq. Congress also delegated authority to the President to suspend the entry of “any class of aliens” as he deems appropriate: Whenever the President finds that the entry of any aliens or of any 3 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000047 (5 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 4 of 26 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. Id. § 1182(f). Many presidents have invoked the authority of § 1182(f) to bar the entry of broad classes of aliens from identified countries.2 In Executive Order No. 13769, the President exercised the authority granted in § 1182(f). Exec. Order No. 13769 § 3(c) (Jan. 27, 2017), revoked by Exec. Order No. 13780 § 1(i) (Mar. 6, 2017). The Executive Order covered a number of subjects. Three provisions were particularly relevant to this litigation. First, the Executive Order found that “the immigrant and nonimmigrant entry into the United States of aliens from [seven] countries . . . would be detrimental to the interests of the United States” and ordered the suspension of entry for nationals (with certain exceptions) from those countries for 90 days. Id. The seven countries were Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Second, it directed the Secretary of State to suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. 2 See, e.g., Exec. Order No. 12324 (Sept. 29, 1981) (Reagan and Haiti); Proclamation No. 5517 (Aug. 22, 1986) (Reagan and Cuba); Exec. Order No. 12807 (May 24, 1992) (George H.W. Bush and Haiti); Proclamation No. 6958 (Nov. 22, 1996) (Clinton and Sudan); Proclamation No. 7359 (Oct. 10, 2000) (Clinton and Sierra Leone); Exec. Order No. 13276 (Nov. 15, 2002) (George W. Bush and Haiti); Exec. Order No. 13692 (Mar. 8, 2015) (Obama and Venezuela); Exec. Order No. 13726 (Apr. 19, 2016) (Obama and Libya). 4 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000048 (6 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 5 of 26 However, exceptions could be made “on a case-by-case basis” in the discretion of the Secretaries of State and Homeland Security. Once USRAP resumed, the Secretary of State was “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual [was] a minority religion in the individual’s country of nationality.” Id. § 5(a), (b), (e). Third, it suspended indefinitely the entry of Syrian refugees. Id. § 5(c). B Three days after the President signed the Executive Order, the States of Washington and Minnesota brought suit in the Western District of Washington seeking declaratory and injunctive relief on behalf of their universities, businesses, citizens, and residents that were affected by the Executive Order in various ways. The States also sought a temporary restraining order (TRO). On February 3, 2017, following a hearing, the district court, without making findings of fact or conclusions of law with respect to the merits of the suit, issued a nationwide TRO against the enforcement of §§ 3(c), 5(a) (c), (e). The district court proposed further briefing by the parties and a hearing on the States’ request for a preliminary injunction.3 3 That same day, the district court for the District of Massachusetts denied a preliminary injunction to petitioners challenging the Executive Order on equal protection, Establishment Clause, due process, and APA grounds. Louhghalam v. 5 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000049 (7 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 6 of 26 The United States sought a stay of the district court’s order pending an appeal. A motions panel of our court, on an expedited basis (including oral argument by phone involving four time zones), denied the stay. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017). Among other things, the panel drew three critical conclusions. First, the panel held that, although we owe deference to the political branches, we can review the Executive Order for constitutionality under the same standards as we would review challenges to domestic policies. See id. at 1161 64. Second, the panel found that the States were likely to succeed on their due process arguments because “the Executive Order [does not] provide[] what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.” Id. at 1164. Third, the panel found that there were at least “significant constitutional questions” under the Establishment Clause raised by the fact that the seven countries identified in the Executive Order are principally Muslim countries and the President, before and after his election, made reference to “a Muslim ban.” Id. at 1168. Trump, No. 17-10154-NMG, 2017 WL 479779 (D. Mass. Feb. 3, 2017). The following week, the district court for the Eastern District of Virginia granted a preliminary injunction against enforcement of the Executive Order in Virginia. The court’s sole grounds were based on the Establishment Clause. Aziz v. Trump, No. 1:17-cv-116 (LMB/TCB), 2017 WL 580855 (E.D. Va. Feb. 13, 2017). 6 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000050 (8 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 7 of 26 In response to the panel’s decision not to stay the district court’s TRO pending appeal, a judge of our court asked for en banc review. The court invited the parties to comment on whether the entire court should review the judgment. The U.S. Department of Justice asked that the panel hold the appeal while the administration considered the appropriate next steps and vacate the opinion upon the issuance of any new executive order. A majority of the court agreed to stay the en banc process. In the end, the President issued a new Executive Order on March 6, 2017, that referred to the panel’s decision and addressed some of the panel’s concerns. In light of the new Executive Order, the Department of Justice moved to dismiss the appeal in this case. The panel granted the motion to dismiss but did not vacate its precedential opinion.4 Ordinarily, when an appeal is dismissed because it has become moot, any opinions previously issued in the case remain on the books. U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 26 (1994) (“Judicial precedents are presumptively correct and valuable to the legal community as a whole. They . . . should stand unless a court concludes that the public interest would be served by a 4 Proceedings in the original suit filed by Washington and Minnesota are still pending in the Western District of Washington. The State of Hawaii also filed suit in the District of Hawaii and has asked for a TRO enjoining the second Executive Order. See Plaintiffs’ Motion for Temporary Restraining Order, Hawai’i v. Trump, No. 1:17-cv-00050-DKW-KSC (D. Haw. Mar. 8, 2017), ECF No. 65. 7 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000051 (9 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 8 of 26 vacatur.” (citation omitted)). The court, however, has discretion to vacate its opinion to “clear[] the path for future relitigation of the issues between the parties,” United States v. Munsingwear, Inc., 340 U.S. 36, 40 (1950), or where “exceptional circumstances . . . counsel in favor of such a course,” U.S. Bancorp Mortg., 513 U.S. at 29. We should have exercised that discretion in this case because the panel made a fundamental error.5 It neglected or overlooked critical cases by the Supreme Court and by our court making clear that when we are reviewing decisions about who may be admitted into the United States, we must defer to the judgment of the political branches.6 That does not mean that we have no power of judicial review at all, but it does mean that our authority to second guess or to probe the decisions of those branches is carefully circumscribed. The panel’s analysis conflicts irreconcilably with our prior cases. We had an obligation to 5 We have previously said that it is procedurally proper for a judge “to seek an en banc rehearing for the purpose of vacating [a panel’s] decision.” United States v. Payton, 593 F.3d 881, 886 (9th Cir. 2010). 6 To be clear, the panel made several other legal errors. Its holding that the States were likely to succeed on the merits of their procedural due process claims confounds century-old precedent. And its 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. But these errors are not what justified vacatur. Instead, it is the panel’s treatment of Kleindienst v. Mandel, 408 U.S. 753 (1972), that called for an extraordinary exercise of our discretion to vacate the panel’s opinion. 8 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000052 (10 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 9 of 26 vacate the panel’s opinion in order to resolve that conflict and to provide consistent guidance to district courts and future panels of this court. II The panel began its analysis from two important premises: first, that it is an “uncontroversial principle” that we “owe substantial deference to the immigration and national security policy determinations of the political branches,” Washington, 847 F.3d at 1161; second, that courts can review constitutional challenges to executive actions, see id. at 1164. I agree with both of these propositions. Unfortunately, that was both the beginning and the end of the deference the panel gave the President. How do we reconcile these two titan principles of constitutional law? It is indeed an “uncontroversial principle” that courts must defer to the political judgment of the President and Congress in matters of immigration policy. The Supreme Court has said so, plainly and often. See, e.g., Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“[T]he responsibility for regulating the relationship between the United States and our alien visitors has been committed to the political branches of the Federal Government.”); Harisiades, 342 U.S. at 590 (“[N]othing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require us to equate our political judgment with 9 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000053 (11 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 10 of 26 that of Congress.”); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953) (“Courts have 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.”); Henderson v. Mayor ofN.Y., 92 U.S. (2 Otto) 259, 270 71 (1876). On the other hand, it seems equally fundamental that the judicial branch is a critical backstop to defend the rights of individuals against the excesses of the political branches. See INS v. Chadha, 462 U.S. 919, 941 (1983) (reviewing Congress’s use of power over aliens to ensure that “the exercise of that authority does not offend some other constitutional restriction” (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976))). The Supreme Court has given us a way to analyze these knotty questions, but it depends on our ability to distinguish between two groups of aliens: those who are present within our borders and those who are seeking admission. As the Court explained in Leng May Ma v. Barber, It is important to note at the outset that our immigration laws have long made a distinction between those aliens who have come to our shores seeking admission, . . . and those who are within the United States after an entry, irrespective of its legality. In the latter instance the Court has recognized additional rights and privileges not extended to those in the former category who are merely “on the threshold of initial entry.” 357 U.S. 185, 187 (1958) (quoting Mezei, 345 U.S. at 212). The panel did not 10 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000054 (12 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 11 of 26 recognize that critical distinction and it led to manifest error. The panel’s decision is not only inconsistent with clear Supreme Court authority, but the panel missed a whole bunch of our own decisions as well. A The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972). In Mandel, the government had denied a visa to a Marxist journalist who had been invited to address conferences at Columbia, Princeton, and Stanford, among other groups. Mandel and American university professors brought facial and as-applied challenges under the First and Fifth Amendments. The Court first made clear that Mandel himself, “as an unadmitted and nonresident alien, had no constitutional right of entry.” Id. at 762. Then it addressed the First Amendment claims of the professors who had invited him. Recognizing that “First Amendment rights [were] implicated” in the case, the Court declined to revisit the principle that the political branches may decide whom to admit and whom to exclude. Id. at 765. It concluded that when the executive has exercised its authority to exclude aliens “on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment 11 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000055 (13 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 12 of 26 interests of those who seek personal communication with the applicant.” Id. at 770. In this case, the government argued that Mandel provided the proper framework for analyzing the States’ claims. The panel, however, tossed Mandel aside because it involved only a decision by a consular officer, not the President. See Washington, 847 F.3d at 1162 (“The present case, by contrast, is not about the application of a specifically enumerated congressional policy to the particular facts presented in an individual visa application. Rather the States are challenging the President’s promulgation of sweeping immigration policy.”). Two responses. First, the panel’s declaration that we cannot look behind the decision of a consular officer, but can examine the decision of the President stands the separation of powers on its head. We give deference to a consular officer making an individual determination, but not the President when making a broad, national security-based decision? With a moment’s thought, that principle cannot withstand the gentlest inquiry, and we have said so. See Bustamante v. Mukasey, 531 F.3d 1059, 1062 n.1 (9th Cir. 2008) (“We are unable to distinguish Mandel on the grounds that the exclusionary decision challenged in that case was not a consular visa denial, but rather the Attorney General’s refusal to waive Mandel’s inadmissibility. The holding is plainly stated in terms of the power delegated by Congress to ‘the 12 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000056 (14 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 13 of 26 Executive.’ The Supreme Court said nothing to suggest that the reasoning or outcome would vary according to which executive officer is exercising the Congressionally-delegated power to exclude.”). Second, the promulgation of broad policy is precisely what we expect the political branches to do; Presidents rarely, if ever, trouble themselves with decisions to admit or exclude individual visa-seekers. See Knauff, 338 U.S. at 543 (“[B]ecause the power of exclusion of aliens is also inherent in the executive department of the sovereign, Congress may in broad terms authorize the executive to exercise the power . . . for the best interests of the country during a time of national emergency.”). If the panel is correct, it just wiped out any principle of deference to the executive. Worse, the panel’s decision missed entirely Fiallo v. Bell, 430 U.S. 787 (1977), and Fiallo answers the panel’s reasons for brushing off Mandel. In Fiallo, the plaintiff brought a facial due process challenge to immigration laws giving preferential treatment to natural mothers of illegitimate children. As in Mandel, the constitutional challenge in Fiallo was “based on [the] constitutional rights of citizens.” Id. at 795. The Court acknowledged that the challenge invoked “‘double-barreled’ discrimination based on sex and illegitimacy.” Id. at 794. Either ground, if brought in a suit in a domestic context, would have invoked some kind of heightened scrutiny. See Craig v. Boren, 429 U.S. 190, 197 (1976) (sex 13 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000057 (15 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 14 of 26 discrimination); Trimble v. Gordon, 430 U.S. 762, 769 (1977) (illegitimacy). Rejecting the claim that “the Government’s power in this area is never subject to judicial review,” Fiallo, 430 U.S. at 795 96, 795 n.6, the Court held that Mandel’s “facially legitimate and bona fide reason” test was the proper standard: “We can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel, a First Amendment case.” Id. at 795; see also id. at 794 (rejecting “the suggestion that more searching judicial scrutiny is required”). Importantly, the Court reached that conclusion despite the fact the immigration laws at issue promulgated “sweeping immigration policy,” Washington, 847 F.3d at 1162, just as the Executive Order did. The panel’s holding that “exercises of policymaking authority at the highest levels of the political branches are plainly not subject to the Mandel standard,” id., is simply irreconcilable with the Supreme Court’s holding that it could “see no reason to review the broad congressional policy choice at issue [there] under a more exacting standard than was applied in Kleindienst v. Mandel,” Fiallo, 430 U.S. at 795. Fiallo wasn’t the only Supreme Court case applying Mandel that the panel missed. In Kerry v. Din, 135 S. Ct. 2128 (2015), the Court confronted a case in 14 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000058 (16 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 15 of 26 which Din (a U.S. citizen) claimed that the government’s refusal to grant her Afghani husband a visa violated her own constitutional right to live with her husband. A plurality held that Din had no such constitutional right. Id. at 2131 (plurality opinion). Justice Kennedy, joined by Justice Alito, concurred in the judgment, and we have held that his opinion is controlling. Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016). For purposes of the case, Justice Kennedy assumed that Din had a protected liberty interest, but he rejected her claim to additional procedural due process. “The conclusion that Din received all the process to which she was entitled finds its most substantial instruction in the Court’s decision in Kleindienst v. Mandel.” Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in the judgment) (citation omitted). After reciting Mandel’s facts and holding, Justice Kennedy concluded that “[t]he reasoning and the holding in Mandel control here. That decision was based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field.” Id. at 2140. Once the executive makes a decision “on the basis of a facially legitimate and bona fide reason,” the courts may “‘neither look behind the exercise of that discretion, nor test it by balancing its justification against’ the constitutional interests of citizens the visa denial might implicate.” Id. 15 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000059 (17 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 16 of 26 (quoting Mandel, 408 U.S. at 770). Applying Mandel, Justice Kennedy concluded that “the Government satisfied any obligation it might have had to provide Din with a facially legitimate and bona fide reason for its action when it provided notice that her husband was denied admission to the country under [8 U.S.C.] § 1182(a)(3)(B).” Id. at 2141. No more was required, and “[b]y requiring the Government to provide more, the [Ninth Circuit] erred in adjudicating Din’s constitutional claims.” Id. The importance and continuing applicability of the framework set out in Mandel and applied in Fiallo and Din has been recognized in circumstances remarkably similar to the Executive Order. After the attacks of September 11, 2001, the Attorney General instituted the National Security Entry-Exit Registration System. That program required non-immigrant alien males (residing in the United States) over the age of sixteen from twenty-five countries twenty-four Muslimmajority countries plus North Korea to appear for registration and fingerprinting. One court referred to the program as “enhanced monitoring.” See Rajah v. Mukasey, 544 F.3d 427, 433 34, 439 (2d Cir. 2008) (describing the program).7 The aliens subject to the program filed a series of suits in federal courts across the 7 The aliens subject to the program were designated by country in a series of notices. The first notice covered five countries: Iran, Iraq, Libya, Sudan, and Syria. See Rajah, 544 F.3d at 433 n.3. 16 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000060 (18 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 17 of 26 United States. They contended that the program unconstitutionally discriminated against them on the basis of “their religion, ethnicity, gender, and race.” Id. at 438. Similar to the claims here, the petitioners argued that the program “was motivated by an improper animus toward Muslims.” Id. at 439. Citing Fiallo and applying the Mandel test, the Second Circuit held that “[t]he most exacting level of scrutiny that we will impose on immigration legislation is rational basis review.” Id. at 438 (alteration in original) (citation omitted). The court then found “a facially legitimate and bona fide reason for” the registration requirements because the countries were “selected on the basis of national security criteria.” Id. at 438 39. The court rejected as having “no basis” the petitioners’ claim of religious animus. Id. at 439. The court observed that “one major threat of terrorist attacks comes from radical Islamic groups.” Id. It added: Muslims from non-specified countries were not subject to registration. Aliens from the designated countries who were qualified to be permanent residents in the United States were exempted whether or not they were Muslims. The program did not target only Muslims: non-Muslims from the designated countries were subject to registration. Id. Finally, the court refused to review the program for “its effectiveness and wisdom” because the court “ha[d] no way of knowing whether the Program’s enhanced monitoring of aliens ha[d] disrupted or deterred attacks. In any event, 17 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000061 (19 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 18 of 26 such a consideration [was] irrelevant because an ex ante rather than ex post assessment of the Program [was] required under the rational basis test.” Id. The Second Circuit thus unanimously rejected the petitioners’ constitutional challenges and “join[ed] every circuit that ha[d] considered the issue in concluding that the Program [did] not violate Equal Protection guarantees.” Id.; see Malik v. Gonzales, 213 F. App’x 173, 174 75 (4th Cir. 2007); Kandamar v. Gonzales, 464 F.3d 65, 72 74 (1st Cir. 2006); Zafar v. U.S. Attorney Gen., 461 F.3d 1357, 1367 (11th Cir. 2006); Hadayat v. Gonzales, 458 F.3d 659, 664 65 (7th Cir. 2006); Shaybob v. Attorney Gen., 189 F. App’x 127, 130 (3d Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006); see also Adenwala v. Holder, 341 F. App’x 307, 309 (9th Cir. 2009); Roudnahal v. Ridge, 310 F. Supp. 2d 884, 892 (N.D. Ohio 2003). The panel was oblivious to this important history. The combination of Mandel, Fiallo, and Din, and the history of their application to the post-9/11 registration program, is devastating to the panel’s conclusion that we can simply apply ordinary constitutional standards to immigration policy. Compounding its omission, the panel missed all of our own cases applying Mandel to constitutional challenges to immigration decisions. See, e.g., Cardenas, 826 F.3d at 1171 (discussing Mandel and Din extensively as the “standard of judicial review applicable to the visa denial” where petitioner alleged 18 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000062 (20 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 19 of 26 due process and equal protection violations); An Na Peng v. Holder, 673 F.3d 1248, 1258 (9th Cir. 2012) (applying the Mandel standard to reject a lawful permanent resident’s equal protection challenge against a broad policy); Bustamante, 531 F.3d at 1060 (applying Mandel to a due process claim and describing Mandel as “a highly constrained review”); Padilla Padilla v. Gonzales, 463 F.3d 972, 978 79 (9th Cir. 2006) (applying Mandel to a due process challenge to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996); Nadarajah v. Gonzales, 443 F.3d 1069, 1082 (9th Cir. 2006) (using the Mandel standard to address an alien’s challenge to the executive’s denial of parole to temporarily enter the United States, and finding the executive’s reasons “were not facially legitimate and bona fide”); Barthelemy v. Ashcroft, 329 F.3d 1062, 1065 (9th Cir. 2003) (applying Fiallo to a facial equal protection challenge based on “former marital status”); Noh v. INS, 248 F.3d 938, 942 (9th Cir. 2001) (applying Mandel when an alien challenged the revocation of his visa); see also Andrade Garcia v. Lynch, 828 F.3d 829, 834 35 (9th Cir. 2016) (discussing review under Mandel). Like the Second Circuit in Rajah, we too have repeatedly “equated [the Mandel] standard of review with rational basis review.” Barthelemy, 329 F.3d at 1065; see An Na Peng, 673 F.3d at 1258; Ablang v. Reno, 52 F.3d 801, 805 (9th Cir. 1995). It is equally clear from our cases that we apply Mandel whether we are 19 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000063 (21 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 20 of 26 dealing with an individual determination by the Attorney General or a consular officer, as in Mandel and Din, or with broad policy determinations, as in Fiallo. The panel’s clear misstatement of law justifies vacating the opinion. B Applying Mandel here, the panel’s error becomes obvious: the Executive Order was easily “facially legitimate” and supported by a “bona fide reason.” As I have quoted above, § 1182(f) authorizes the President to suspend the entry of “any class of aliens” as he deems appropriate: 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. 8 U.S.C. § 1182(f).8 Invoking this authority and making the requisite findings, the President “proclaim[ed] that the immigrant and nonimmigrant entry into the United States of aliens from [seven] countries . . . would be detrimental to the interests of 8 Regrettably, the panel never once mentioned § 1182(f), nor did it acknowledge that when acting pursuant it to it, the government’s “authority is at its maximum, for it includes all that [the President] possesses in his own right plus all the Congress can delegate.” Youngstown, 343 U.S. at 635 (Jackson, J., concurring); see Knauff, 338 U.S. at 542 (“When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.”). 20 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000064 (22 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 21 of 26 the United States,” and he suspended their entry for 90 days. Exec. Order No. 13769 § 3(c). As the Executive Order further noted, the seven countries Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen had all been previously identified by either Congress, the Secretary of State, or the Secretary of Homeland Security (all in prior administrations) as “countries or areas of concern” because of terrorist activity.9 The President noted that we “must be vigilant” in light of “deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest.” Id. § 1. The President’s actions might have been more aggressive than those of his predecessors, but that was his prerogative. Thus, the President’s actions were supported by a “facially legitimate and bona fide” reason. Justice Kennedy indicated in Din that it might have been appropriate to “look behind” the government’s exclusion of Din’s husband if there were “an affirmative showing of bad faith on the part of the consular officer who denied [the 9 Iraq and Syria: Congress has disqualified nationals or persons who have been present in Iraq and Syria from eligibility for the Visas Waiver Program. 8 U.S.C. § 1187(a)(12)(A)(i)(I), (ii)(I). Iran, Sudan, and Syria: Under § 1187(a)(12)(A)(i)(II), (ii)(II), the Secretary of State has designated Iran, Sudan, and Syria as state sponsors of terrorism because the “government . . . repeatedly provided support of acts of international terrorism.” Libya, Somalia, and Yemen: Similarly, under § 1187(a)(12)(A)(i)(III), (ii)(III), the Secretary of Homeland Security has designated Libya, Somalia, and Yemen as countries where a foreign terrorist organization has a significant presence in the country or where the country is a safe haven for terrorists. 21 VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000065 (23 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 22 of 26 husband’s] visa.” Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the judgment). Because the panel never discussed Din, let alone claimed that Justice Kennedy’s comment might allow us to peek behind the facial legitimacy of the Executive Order, I need not address the argument in detail. Suffice it to say, it would be a huge leap to suggest that Din’s “bad faith” exception also applies to the motives of broad-policy makers as opposed to those of consular officers. Even if we have questions about the basis for the President’s ultimate findings whether it was a “Muslim ban” or something else we do not get to peek behind the curtain. So long as there is one “facially legitimate and bona fide” reason for the President’s actions, our inquiry is at an end. As the Court explained in Reno v. American Arab Anti Discrimination Committee, 525 U.S. 471 (1999): The Executive should not have to disclose its “real” reasons for deeming nationals of a particular country a special threat or indeed for simply wishing to antagonize a particular foreign country by focusing on that country’s nationals and even it if did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. Id. at 491; see Mezei, 345 U.S. at 210 12; Knauff, 338 U.S. at 543. The panel faulted the government for not coming forward in support of the Executive Order with evidence including “classified information.” Washington, 847 F.3d at 1168 & nn.7 8. First, that is precisely what the Court has told us we 22 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000066 (24 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 23 of 26 should not do. Once the facial legitimacy is established, we may not “look behind the exercise of that discretion.” Fiallo, 430 U.S. at 795 96 (quoting Mandel, 408 U.S. at 770). The government may provide more details “when it sees fit” or if Congress “requir[es] it to do so,” but we may not require it. Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the judgment). Second, that we have the capacity to hold the confidences of the executive’s secrets does not give us the right to examine them, even under the most careful conditions. As Justice Kennedy wrote in Din, “in light of the national security concerns the terrorism bar addresses[,] . . . even if . . . sensitive facts could be reviewed by courts in camera, the dangers and difficulties of handling such delicate security material further counsel against requiring disclosure.” Id.; see Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948) (“It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive taken on information properly held secret. Nor can courts sit in camera in order to be taken into executive confidences.”). When we apply the correct standard of review, the President does not have to come forward with supporting documentation to explain the basis for the Executive Order. The panel’s errors are many and obvious. Had it applied the proper standard, the panel should have stopped here and issued the stay of the district 23 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000067 (25 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 24 of 26 court’s TRO. Instead, the panel opinion stands contrary to well-established separation-of-powers principles. We have honored those principles in our prior decisions; the panel failed to observe them here. If for no other reason, we should have gone en banc to vacate the panel’s opinion in order to keep our own decisions straight. III We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches and perhaps especially when we disagree we have to trust that the wisdom of the nation as a whole will prevail in the end. 24 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000068 (26 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 25 of 26 Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight. Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable 25 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000069 (27 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 2, Page 26 of 26 principles. The courts of law must be more than that, or we are not governed by law at all. I dissent, respectfully. 26 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000070 (28 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 3, Page 1 of 2 FILED FOR PUBLICATION MAR 1 5 201 7 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STATE OF WASHINGTON; STATE OF MINNESOTA, Plaintiffs Appellees, No. 17 35105 D.C. No. 2:17 cv 00141 Western District of Washington, Seattle v. ORDER DONALD J. TRUMP, President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; REX W. TILLERSON, Secretary of State; JOHN F. KELLY, Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants Appellants. Before: CANBY, CLIFTON, and FRIEDLAND, Circuit Judges. This court in a published order previously denied a motion of the government for a stay of a restraining order pending appeal. 847 F.3d 1 1 51 (9th Cir. 201 7). That order became moot when this court granted the government's unopposed motion to dismiss its underlying appeal. Order, Mar. 8, 201 7. No party has moved to vacate the published order. A judge of this court called for a vote to determine whether the court should grant VERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000071 (29 of 29) Case: 17 35105, 03/15/2017, ID: 10358462, DktEntry: 190 3, Page 2 of 2 en banc reconsideration in order to vacate the published order denying the stay. The matter failed to receive a majority of the votes of the active judges in favor of en banc reconsideration. Vacatur of the stay order is denied. See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 51 3 U.S. 1 8, (1 994) (holding that the "extraordinary remedy of vacatur" is ordinarily unjustified when post-decision mootness is caused by voluntary action of the losing party). This order is being filed along with the concurrence of Judge Reinhardt and the dissent of Judge Bybee. Filings by other judges may follow. 2 AMERICAN PVERSIGHT Document ID: 0.7.22688.5103-000001 DOJ-18-0367-A-000072 sc~NHEO/R ECE\VEO BY ESEC SEC ~upreme 2n\lli\~R\ 1 AM11:I~