Yesterday the U.S. Court of Appeals of the Ninth Circuit, in a per curiam opinion, affirmed in part a preliminary injunction against the Trump administration's revised travel ban issued by a federal district court in Hawaii v. Trump. The decision comes on the heels of the Fourth Circuit’s decision in IRAP v. Trump, which we summarized for Lawfare here. The government has appealed that decision to the Supreme Court.
Below we summarize the factual and procedural history of the case and judgment of the court. We then discuss the decision’s potential implications for Supreme Court review of the travel ban.
The court rests its holding on statutory limits to the President’s immigration powers. Although the court recognizes the President’s broad powers to control an alien’s entry to the country and to protect the nation, the court concludes that Trump exceeded the authority given him by Congress when he suspended the entry of 180 million nationals from six countries, suspended the entry of all refugees, and reduced the admission cap of refugees from 110,000 to 50,000 because he did not make a sufficient finding that their entry would be “detrimental to the interests of the United States.” The court also finds that the executive order is also incongruent with other INA provisions, including anti-discrimination provisions, and upheld the preliminary enjoining of most of Sections 2 and 6 of the order.
The court recounts the history of the first executive order and explains that its purported purpose was to “protect the American people from terrorist attacks by foreign nationals admitted to the United States.” The court then explains that the first order, having caused a great deal of uncertainty, sparked suits from the states of Washington and Minnesota, resulting in a preliminary injunction from a Washington district court on February 3, 2017. The government appealed to the Ninth Circuit the following day, but the court denied the emergency motion, finding that the states had alleged harms to their proprietary interests and had demonstrated a likelihood of success on their Due Process claim.
The second executive order took effect on March 16 and included a 90-day ban on travel from six countries (this time excluding Iraq), as well as a suspension of the Refugee Assistance Program for 120 days. This latter Section calls for a review of the current processes, reduces the number of admitted refugees from 110,000 to 50,000 for 2017, excludes the provision for a persecution-related exception, and provides for a discretionary case-by-case waiver. The court concludes by citing the Department of State’s 2015 Country Reports on Terrorism and noting that the government did not discuss any instances of domestic terrorism involving individuals from five of the six countries: Iran, Libya, Sudan, Syria, or Yemen.
The court then turns its attention to documentary evidence connected to the first executive order. The Department of Homeland Security published a report concluding that citizenship is unlikely to be a reliable indicator of terrorist activity and that individuals from the seven countries (included in the first order) are “[r]arely [i]mplicated in U.S.-[b]ased [t]errorism.” The court explains that the report also determined that around 50 percent of those who were inspired by foreign terrorist groups to attack the United States were U.S. citizens who were born in the United States, and that those who were not born in the United States were likely radicalized several years after they entered the United States. The court also mentions that in a letter, Attorney General Jeff Sessions and Secretary of Homeland Security John Kelly recommended that Trump direct a temporary pause in entry from countries that are “unable or unwilling to provide the United States with adequate information about their nationals or are designated as state sponsors of terrorism.”
Having filed a suit in district court in the wake of the first executive order (which was put on hold after the Ninth Circuit’s decision), the state of Hawaii filed an amended complaint after the second order was issued to protect “its residents, employers, its educational institutions, and its sovereignty.” Hawaii was joined by Dr. Elshikh, the imam of the Muslim Association of Hawaii, whose wife previously filed an I-130 Petition for Alien Relative on behalf of her mother, a Syrian national in Syria.
The plaintiffs alleged that the order violated the Establishment Clause and the Fifth Amendment’s Due Process Clause in addition to the Immigration and Nationality Act; the Religious Freedom Restoration Act; and the Administrative Procedure Act. Specifically, the plaintiffs “contend that EO2 violates the INA by discriminating on the basis of nationality, ignoring and modifying the statutory criteria for determining terrorism-related inadmissibility, and exceeding the President’s delegated authority under the INA.”
On March 15, 2017, the district court found that the plaintiffs showed a likelihood of success on the merits of their Establishment Clause claim, granted the TRO, and entered a nationwide injunction against Sections 2 and 6 of the revised executive order. On March 29, 2017, the TRO was converted to a preliminary injunction, with the district court rejecting the government’s request to narrow the scope of the injunction, concluding that both sections “ran afoul of the Establishment Clause and that the Government did not provide a workable framework for narrowing the scope of the enjoined conduct.” The government appealed on March 30, asking the court to vacate the preliminary injunction—or at least narrow the injunction—and to stay the injunction pending the appeal.
The district court decided the constitutional claim without expressing its views on the statutory claims. In light of the Supreme Court’s admonition against issuing “unnecessary constitutional rulings” (American Foreign Service Association v. Garfinkel), the Ninth Circuit takes the opposite tack, resting its decision on the statutory claim under the Immigration and Nationality Act (INA) and declining to reach the Establishment Clause claim.
The court turns to the government’s justiciability challenge. In order to demonstrate standing, the plaintiffs must show: (1) an concrete and imminent injury in fact; (2) that the injury is fairly traceable to the challenged actions of the president; and (3) that the injury will be likely be redressed by a favorable decision.
The court begins with Dr. Elshikh, who asserted injury on the ground that the order prevented him from being reunited with his mother-in-law. The court agrees that the second executive order is a barrier to reunification with his mother-in-law. Briefly noting the Supreme Court’s decisions in Kerry v. Din and Kleindienst v. Mandel and its own decision in Cardenas v. United States, the court analogizes this case to Legal Assistance for Vietnamese Asylum Seekers v. Department of State, Bureau of Consular Affairs, a D.C. Circuit case which found that visa sponsors in the United States had standing to assert that the State Department’s refusal to process visa applications of Vietnamese citizens living in Hong Kong violated 8 U.S.C. § 1152. The court also determines that the fact that Elshikh’s mother-in-law’s visa application process was placed on hold when the first executive order came into effect constitutes evidence of concrete, real, and immediate harm. The court also determines that Dr. Elshikh established causation and redressability, since his injuries are traceable to the provisions of the executive order at issue.
The court then addresses Hawaii’s two theories of harm: harm to its proprietary interests and impairment of its sovereign interest. Because of the present impact on the university, the court determines that the state’s injury is concrete and imminent. The court rejects the government’s contention that the plaintiffs cannot rely on events that occurred after the filing of the complaint in order to establish standing, stating that the supplemental declaration that the state filed “merely provides greater detail regarding the students who may be unable to join the academic community this fall if EO2 takes effect.” As a result, the court determines that the state’s standing is grounded in its proprietary interests as the operator of the university, since students and faculty who are suspended from entry are deterred from studying or teaching and students who are unable to attend the university due to the travel restrictions in the executive order will not pay tuition or contribute to the diversity of the student body. The court determines that the order also impairs Hawaii’s sovereign interests in carrying out its refugee policies, as well as its ability to create and enforce its local laws that protect equal rights, prohibit discrimination, and fostering diversity.
The court determines that the plaintiffs “fall within the zone of interests protected by the law invoked,” per Lexmark International, Inc. v. Static Control Components, Inc., because they have raised a statutory claim. As to Elshikh’s claim, the court explains that “[g]iven the nature and purpose of the statute [preservation of the family unit], the resident appellants fall well within the zone of interest Congress intended to protect.” As to Hawaii’s claim, the court concludes that “the State’s efforts to enroll students and hire faculty members who are nationals from the six designated countries fall within the zone of interests of the INA,” reasoning that “[t]he INA leaves no doubt that the State’s interests in student- and employment-based visa petitions for its students and faculty are related to the basic purposes of the INA.” The court also concludes that Hawaii’s interest in its refugee resettlement policies and programs also fall within the zone of interests protected by the INA. Thus all the plaintiffs’ injuries are “‘arguably within the zone of interests’ that the INA protects,” as per Bank of America Corp. v. City of Miami.
Lastly, the government argues either that the plaintiffs’ claims are not ripe or they are precluded by consular nonreviewability. The court dismisses the first argument because the waiver the government highlights is discretionary: “Indeed, no one can count on it.” The court concludes that the waiver is not “a sufficient safety valve,” and “is a far cry from the ‘contingent future’ argued by the Government.” The court dismisses the government’s consular nonreviewability doctrine claim because the plaintiffs are targeting the president’s “promulgation of sweeping immigration policy” rather than an individual consular officer’s decision on a visa application. Since courts “can and do review both constitutional and statutory ‘challenges to the substance of immigration policy’”, the court rules that the actions by the government are subject to judicial review. The court continues:
Whatever deference we accord to the President’s immigration and national security policy judgements does not preclude us from reviewing the policy at all. . . . We do not abdicate the judicial role, and we affirm our obligation ‘to say what the law is’ in this case.
To be granted a preliminary injunction, a plaintiff must establish that (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm absent relief; (3) that the balance of equities tips in their favor; and (4) that the injunction is in the public interest, all based on Winter v. Natural Resources Defense Council, Inc.
The court examines whether the second executive order violates certain provisions of the INA and the Refugee Act of 1980.
- Compliance with § 1182(f)
In a departure from its previous decision not to examine the basis upon which Trump based his authority (as Ben Wittes highlighted for Lawfare here), the court begins its examination of the merits by focusing on § 1182(f) of the INA. First, the court explains that Trump invoked the power delegated to him by Congress under § 1182(f) (suspension of entry) and § 1185(a) of the INA, but that he invoked neither section to suspend the travel of refuges and to suspend decisions on applications for refugees under Section 6(a) of the order. The court then points out that the language of the congressional grant of authority requires that the president make a finding that the entry of aliens into the United States would be detrimental to the interests of the United States, and proceeds to focus on the findings of Section 2(c).
The court explains that it rejects the first three reasons behind Section 2(c) (reducing investigative burdens; ensuring proper review and screening; and ensuring adequate standards to prevent infiltration by terrorists) because “[t]here is no finding that the present vetting standards are inadequate,” or that in the absence of improved ones there will be harm to national interests. The court then turns to the fourth reason (national security concerns), and also rejects this justification. The court, explaining that Section 1(d) lists country conditions as facilitating terrorism but does not identify the number of individuals in the six countries who have been convicted of terrorism-related crimes and citing to Judge Kennan’s concurrence in the Fourth Circuit’s decision in IRAP v. Trump, points out that the order “makes no finding that nationality alone renders entry of this broad class of individuals a heightened security risk to the United States.” The court, in a footnote, relies on tweets by President Trump to buttress its conclusion that the administration’s focus is on the listed countries, and not on the nationals of those countries, as threats.
The court explains that the order’s “discussion of country conditions fails to bridge the gap,” and also points to the paradox highlighted by Judge Derrick Watson: “[the executive order could bar] 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.” After pointing out that the government failed to show that the current screening measures are not adequate, the court reasons that the government’s other justification of barring entry based on the Visa Waiver Program does not hold water because the Visa Waiver Program “dictates that the entry of individuals covered by the Order is never ‘unrestricted.’”
Concluding that “national security is not a ‘talismanic incantation’” that can support any exercise of executive power, the court rules that the executive order has not met § 1182(f)’s requirements. The court also finds that the order “does not reveal any threat or harm to warrant suspension,” of the Refugee Assistance Program or that entry of refugees would be harmful, or that the present screening procedures are inadequate. Lastly, the court, relying on former President Barack Obama’s allowance of entry for 110,000 refugees, rules that the order does not provide any justification for only limiting the number to 50,000.
Therefore, according to the court, “[p]laintiffs have shown a likelihood of success on the merits of their claim that the President exceeded his authority under §§ 1182(f) and 1185(a).”
- Compliance with § 1152(a)(1)(A)
Turning to the plaintiffs’ next claim that Section 2(c) violates the prohibition against discrimination in immigration decisions based on nationality, the court explains that § 1182(f) is not among the specific exemptions to § 1152(a)(1)(A), and that Section 2(c)’s stated primary purpose of evaluating the screening and vetting procedures “associated with the visa issuance process” and its implementation through visa denials (as admitted at oral argument and highlighted by Judge Thacker’s concurrence in the Fourth Circuit’s decision in IRAP v. Trump) fall squarely within § 1152(a)(1)(A)’s ambit. The court then makes its point unambiguously clear:
We cannot blind ourselves to the fact that, for nationals of the six designated countries, EO2 is effectively a ban on the issuance of immigrant visas. If allowed to stand, EO2 would bar issuance of visas based on nationality in violation of § 1152(a)(1)(A). The Government did not dispute this point at oral argument, and it standards to reason that the whole system of the visa issuance would grind to a halt for nationals of the six designated countries whose entry is barred from the United States. Issuance of visas will automatically stop for those who are banned based on nationality. Yet Congress could not have used ‘more explicit language,’ in ‘unambiguously direct[ing] that no nationality-based discrimination will occur.’
The court concludes that to allow the use of § 1182(f) here would allow the president to “circumvent the limitations” of § 1152(a)(1)(A), which Congress “could not have intended,” especially since § 1152(a)(1)(A) was enacted in 1965, thirteen years after § 1182(f) was, is more specific than § 1182(f), and does not mention § 1182(f) as an exception. And since previous executive orders have suspended entry of classes of aliens “on the basis of affiliation or culpable conduct,” and not nationality, the court feels that the executive order at issue here is “unprecedented in its scope, purpose, and breadth.”
- Compliance with the Refugee Act of 1980
Next, the court explains that § 1157 of the Refugee Act of 1980 “contemplates that the President, after consultation with Congress, may increase the number of refugees admitted in the middle of fiscal year, but does not provide a mechanism for the President to decrease the number of refugees admitted mid-year” (emphasis original). The court concludes that this law was adopted later in time than § 1182(f) and that this provision is more specific than § 1182(f) based on the “appropriate consultation” language that requires a great deal of descriptive information about the proposed adjustment of entry numbers.
- Compliance with § 1182(a)(3)(B) and Youngstown
Lastly in its examination of the merits, the court says that it will not examine whether Section 2(c)’s reliance on § 1182(f)’s grant of power exceeds the “specific criteria for determining terrorism-related inadmissibility,” as per § 1182(a)(3)(B) because the president has not made a “detrimentality finding,” but notes that there should still be “reasonable ground to believe” that an alien “is likely to engage after entry in any [specifically defined] terrorist activity.”
The court also acknowledges that the president’s authority here should be at its maximum under the tripartite framework set up by Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, but that because his exercise of that power runs afoul of § 1152(a)(1)(A), § 1157, and § 1182(a)(3)(B), it is “incompatible with the express will of Congress.” The court therefore concludes that the plaintiffs have shown a likelihood of success on the merits on their nationality and refugee admission claims.
- Irreparable Harm, Balance of Equities & the Public Interest
The court concludes that the record supports irreparable harm to the plaintiffs, based on harms such as “prolonged separation from family members, constraints to recruiting and attracting students and faculty members to the University of Hawaii, decreased tuition revenue, and the State’s inability to assist in refugee resettlement.” The court also concludes that the district court did not err in finding that the balance of competing claims of injury “tipped in the Plaintiffs’ favor,” because Trump did not make a “detrimentality finding” and because the government did not present evidence of injuries resulting from the injunction. Lastly, the court concludes that “the public interest is served by ‘curtailing unlawful executive action'” and that because the INA was intended to keep families together, it “should be construed in favor of family units and the acceptance of responsibility by family members.” Citing extensively to the amici briefs, the court then details all the harm that lifting the injunction would cause.
Thus, the court rules, the plaintiffs “have satisfied all four factors to warrant entry of the preliminary injunction.”
Scope of the Injunction
The court affirms in part and vacates in part the district court’s preliminary injunction and remands the case back to the district court to reissue an injunction consistent with its opinion.
The court determines that the district court abused its discretion in enjoining "the inward-facing tasks of Section 2 and 6" of the executive order:
For example, internal determinations regarding the necessary information for visa application adjudications do not have an obvious relationship to the constitutional rights at stake or statutory conflicts of issue here. Plaintiffs have not shown how the Government’s internal review of its vetting procedures will harm them.
The court therefore vacates the injunction “to the extent it enjoins internal review procedures that do not burden individuals outside the executive branch of government.”
However, the court maintains the injunction as it relates to the suspension of refugees and the adoption of a 50,000-individual cap on entry, since this will protect Hawaii’s “programs and efforts in resettling refugees,” no matter the number of refugees that have come in. The court also upholds the injunction “as to all persons everywhere” (1) based on the need to enforce the immigration laws “uniformly” (Texas v. United States); and (2) because the government did not provide at the appellate or district court level, according to Judge Watson, “a workable alternative form of the TRO that accounts for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue here while nevertheless applying only within the States’ borders.”
Finally, like the Fourth Circuit in IRAP v. Trump, the Ninth Circuit panel vacates the injunction as it applies to the president but leaves it in place as it applies the rest of the named defendants (based on Franklin v. Massachusetts).
Implications for Supreme Court Review
Now that the Ninth Circuit has reached largely the same conclusion as the Fourth Circuit in IRAP v. Trump, the plaintiffs in IRAP could argue that there is no need for Supreme Court review given that there is no split among the circuit courts. That said, the injunctions are of different scope and predicated on different legal grounds, which could prompt the Supreme Court to clarify these important questions of statutory and constitutional law.