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State v. Trump

United States Court of Appeals, Ninth Circuit

June 12, 2017

DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; JOHN F. KELLY, in his official capacity as Secretary of Homeland Security; U.S. DEPARTMENT OF STATE; REX W. TILLERSON, in his official capacity as Secretary of State; UNITED STATES OF AMERICA, Defendants-Appellants.

          Argued and Submitted May 15, 2017 Seattle, Washington

         Appeal from the United States District Court for the District of Hawai'i D.C. No. 1:17-cv-00050-DKW-KSC Derrick Kahala Watson, District Judge, Presiding

          Jeffrey Bryan Wall (argued), Acting Solicitor General; Edwin S. Kneedler, Deputy Solicitor General; Sharon Swingle, Anne Murphy, Lowell V. Sturgill Jr., H. Thomas Byron III, and Douglas N. Letter, Attorneys, Appellate Staff; August E. Flentje, Special Counsel to the Assistant Attorney General; Elliot Enoki, Acting United States Attorney; Chad A. Readler, Acting Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

          Neal Kumar Katyal (argued), Colleen Roh Sinzdak, Mitchell P. Reich, and Elizabeth Hagerty, Hogan Lovells U.S. LLP, Washington, D.C.; Thomas P. Schmidt, Hogan Lovells U.S. LLP, New York, New York; Sara Solow and Alexander B. Bowerman, Hogan Lovells U.S. LLP, Philadelphia, PA; Douglas S. Chin, Attorney General; Clyde J. Wadsworth, Solicitor General; Deirdre Marie-Iha, Donna H. Kalama, Kimberly T. Guidry, and Robert T. Nakatsuji, Deputy Attorneys General; Department of the Attorney General, Honolulu, Hawai'i; for Plaintiffs-Appellees.

          Scott A. Keller, Solicitor General; J. Campbell Barker, Deputy Solicitor General; Ari Cuenin, Assistant Solicitor General; Ken Paxton, Attorney General; Jeffrey C. Mateer, First Assistant Attorney General; Office of the Attorney General, Austin, Texas; for Amici Curiae States of Texas, Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, and West Virginia, and Governor Phil Bryant of the State of Mississippi.

          Amir H. Ali, Roderick & Solange MacArthur Justice Center, Washington, D.C.; Jessica M. Wan, Lisa W. Cataldo, and David J. Minkin, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawai'i; for Amicus Curiae The Roderick and Solange MacArthur Justice Center.

          Robert D. Fram and Alexandra P. Grayner, Covington & Burling LLP, San Francisco, California; Andrew Guy, Michael Baker, Karun Tilak, and Ligia M. Markman, Covington & Burling LLP, Washington, D.C.; for Amici Curiae Interfaith Coalition.

          Kevin P. Martin, Eileen L. Morrison, Alicia Rubio, Joshua M. Daniels, William B. Brady, and Nicholas K. Mitrokostas, Goodwin Procter LLP, Boston, Massachusetts, for Amici Curiae The Foundation for the Children of Iran and Iranian Alliances Across Borders.

          Michael R. Scott, Lisa J. Chaiet Rahman, and Amit D. Ranade, Hillis Clark Martin & Peterson P.S., Seattle, Washington, for Amici Curiae Episcopal Bishops.

          Dan Jackson, R. Adam Lauridsen, and John W. Keker, Keker, Van Nest & Peters LLP, San Francisco, California, for Amicus Curiae Khizr Khan.

          Lary A. Rappaport, Proskauer Rose LLP, Los Angeles, California; Terrance Nolan, General Counsel and Secretary, New York University, New York, New York; Claire Wong Black and J. Blaine Rogers, Alston Hunt Floyd & Ing, Honolulu, Hawai'i; Tiffany M. Woo, Seth D. Fiur, and Steven E. Obus, Proskaur Rose LLP, New York, New York; for Amicus Curiae New York University.

          Aaron X. Fellmeth, Sandra Day O'Connor College of Law, Arizona State University, Phoenix, Arizona; Jonathan Hafetz, Seton Hall University School of Law, Newark, New Jersey; Joseph M. McMillan and Michelle L. Maley, Perkins Coie LLP, Seattle, Washington; for Amici Curiae International Law Scholars and Nongovernmental Organizations.

          Lindsay C. Harrison, Tassity S. Johnson, Erica L. Ross, and Thomas J. Perrelli, Jenner & Block LLP, Washington, D.C., for Amici Curiae Colleges and Universities.

          Mary Kelly Persyn, Persyn Law & Policy, San Francisco, California, for Amicus Curiae American Professional Society on the Abuse of Children.

          Jonathan M. Freiman and Tahlia Townsend, Wiggin and Dana LLP, New Haven, Connecticut; Harold Hongju Koh and Hope Metcalf, Rule of Law Clinic, Yale Law School, New Haven, Connecticut; for Amici Curiae Former National Security Officials.

          Anna-Rose Mathieson and Ben Feuer, California Appellate Law Group LLP, San Francisco, California, for Amici Curiae Scholars of American Religious History & Law.

          Richard D. Bernstein, Willkie Farr & Gallagher LLP, Washington, D.C., for Amicus Curiae T.A., a U.S. Citizen of Yemeni Descent.

          Joshua Matz, Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP, Washington, D.C., for Amici Curiae Constitutional Law Scholars.

          Marc A. Hearron, Morrison & Foerster LLP, Washington, D.C.; Purvi G. Patel, Morrison & Foerster LLP, Los Angeles, California; Amanda Aikman and Jennifer K. Brown, Morrison & Foerster LLP, New York, New York; Sandeep N. Nandivada, Morrison & Foerster LLP, McLean, Virginia; for Amici Curiae Interfaith Group of Religious and Interreligious Organizations.

          Anton A. Ware, Arnold & Porter Kaye Scholer LLP, San Francisco, California; Aziz Huq, Johnathan J. Smith, and Farhana Khera, Muslim Advocates, Oakland, California; for Amici Curiae Muslim Rights, Professional and Public Health Organizations.

          David L. Franklin, Solicitor General, and Lisa Madigan, Attorney General, Office of the Illinois Attorney General, Chicago, Illinois; for Amici Curiae States of Illinois, California, Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and Washington, and the District of Columbia.

          William S. Consovoy, Consovoy McCarthy Park PLLC, Arlington, Virginia; Kimberly S. Hermann, Southeastern Legal Foundation, Marietta, Georgia; for Amicus Curiae Southeastern Legal Foundation, Inc.

          Edward L. White III and Erik M. Zimmerman, American Center for Law and Justice, Ann Arbor, Michigan; Geoffrey R. Surtees and Francis J. Manion, American Center for Law and Justice, New Hope, Kentucky; Benjamin P. Sisney, Matthew R. Clark, Craig L. Parshall, Jordan Sekulow, Andrew J. Ekonomou, Colby M. May, Stuart J. Roth, and Jay Alan Sekulow, American Center for Law and Justice, Washington, D.C.; for Amicus Curiae American Center for Law and Justice.

          Pratik A. Shah and Martine E. Cicconi, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Robert S. Chang, Fred T. Korematsu Center for Law and Equality, Seattle, Washington; Eric Yamamoto, Fred T. Korematsu Professor of Law and Social Justice, Honolulu, Hawai'i; Claire Wong Black and Louise K.Y. Ing; Alston Hunt Floyd & Ing, Honolulu, Hawai'i; Alice Hsu and Robert A. Johnson, Akin Gump Strauss Hauer & Feld LLP, New York, New York; Jessica M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles, California; for Amici Curiae Fred T. Korematsu Center for Law and Equality, Jay Hirabayashi, Holly Yasui, Karen Korematsu, Civil Rights Organizations, and National Bar Associations of Color.

          Richard B. Katskee, Carmen Green, Bradley Girard, Kelly M. Percival, Andrew L. Nellis, and Eric Rothschild, Americans United for Separation of Church and State, Washington, D.C.; Gillian Gillers and Kristi L. Graunke, Southern Poverty Law Center, Atlanta, Georgia; for Amici Curiae Members of the Clergy, Americans United for Separation of Church and State, Bend the Arc: A Jewish Partnership for Justice, The Riverside Church in the City of New York, and The Southern Poverty Law Center.

          Benna Ruth Solomon, Deputy Corporation Counsel; Edward N. Siskel, Corporation Counsel; City of Chicago Department of Law, Chicago, Illinois; Eliberty Lopez, Brian Neff, and Ryan P. Poscablo, Riley Safer Holmes & Cancila LLP, New York, New York; Nick Kahlon, Riley Safer Holmes & Cancila LLP, Chicago, Illinois; for Amici Curiae Cities of Chicago, Los Angeles, New York, Philadelphia, and Other Major Cities and Counties.

          Linda A. Klein, President, American Bar Association, Chicago, Illinois; Jared S. Stein, Arianna Markel, Erin J. Morgan, Aidan Synnott, and Sidney S. Rosdeitcher, New York, New York; for Amicus Curiae American Bar Association.

          Jonathan A. Scruggs and Kevin H. Theriot, Alliance Defending Freedom, Scottsdale, Arizona, as and for Amicus Curiae Alliance Defending Freedom.

          Richard P. Bress, Alexandra P. Schechtel, and Elana Nightingale Dawson, Latham & Watkins LLP, Washington, D.C.; Christopher Mortweet, Latham & Watkins LLP, Menlo Park, California; for Amicus Curiae Oxfam America, Inc.

          Christopher J. Hajec, Mark S. Venezia, and Elizabeth A. Hohenstein, Immigration Reform Law Institute, Washington, D.C., as and for Amicus Curiae Immigration Reform Law Institute.

          G. Eric Brunstad, Jr., Dechert LLP, Hartford, Connecticut, for Amici Curiae HIAS, The IRC, and USCRI.

          Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, Washington; Leo Gertner, Deborah L. Smith, Claire Prestel, and Nicole G. Berner, Service Employees International Union, for Amicus Curiae Service Employees International Union; Judith Rivlin, Washington, D.C., as and for Amicus Curiae American Federation of State, County, and Municipal Employees; Channing M. Cooper and David J. Strom, Washington, D.C., as and for Amicus Curiae American Federation of Teachers.

          Peter Jaffe, Brent Wible, Lauren Kaplin, and Daniel Braun, Freshfields Bruckhaus Deringer U.S. LLP, Washington, D.C.; Karen Wiswall and David Y. Livshiz, Freshfields Bruckhaus Deringer U.S. LLP, New York, New York; for Amicus Curiae Cato Institute.

          Kenneth A. Klukowski, Alexandria, Virginia, as and for Amicus Curiae American Civil Rights Union.

          Elizabeth B. Wydra, David H. Gans, and Brianne J. Gorod, Constitutional Accountability Center, Washington, D.C.; Peter Karanjia and Jason Harrow, Davis Wright Tremaine LLP, Washington, D.C.; Raymond H. Brescia, Associate Professor of Law, Albany Law School, Albany, New York; Victor A. Kovner, Davis Wright Tremaine LLP, New York, New York; for Amici Curiae 165 Members of Congress.

          Michael J. Gottlieb, Aaron E. Nathan, Cain Norris, J. Wells Harrell, Isra Bhatty, and Joshua Riley, Boies Schiller Flexner LLP, Washington, D.C.; Eli Glasser, Boies Schiller Flexner LLP, Fort Lauderdale, Florida; for Amici Curiae Former Federal Immigration and Homeland Security Officials.

          Andrew J. Pincus and Paul W. Hughes, Mayer Brown LLP, Washington, D.C., for Amici Curiae Technology Companies.

          Nathaniel C. Love and Robert N. Hochman, Sidley Austin LLP, Chicago, Illinois; Charles Roth, National Immigrant Justice Center, Chicago, Illinois; for Amicus Curiae National Immigrant Justice Center; Gail Pendelton, Suffield, Connecticut, as and for Amicus Curiae ASISTA; Jennie Santos-Bourne, Miami, Florida, as and for Amicus Curiae Americans for Immigrant Justice; Linda A. Seabrook, General Counsel, San Francisco, California, as and for Amicus Curiae Futures Without Violence; Jean Bruggeman, Arlington, Virginia, as and for Amicus Curiae Freedom Network USA; Amily K. McCool, Durham, North Carolina, as and for Amicus Curiae North Carolina Coalition Against Domestic Violence.

          Victor Williams, Bethesda, Maryland, pro se for Amicus Curiae America First Lawyers Association.

          Scott L. Winkelman, Justin Kingsolver, Avi Rutschman, and Luke van Houwelingen, Crowell & Moring LLP, Washington, D.C., for Amici Curiae Tahirih Justice Center, The Asian Pacific Institute on Gender-Based Violence, Casa de Esperanza, and National Domestic Violence Hotline.

          James W. Kim, McDermott Will & Emery LLP, Washington, D.C.; Albert Giang, Rachana Pathak, Meredith S.H. Higashi, Navdeep Singh, and Tina R. Matsuoka, National Asian Pacific American Bar Association, Washington, D.C.; for Amicus Curiae National Asian Pacific American Bar Association.

          Brett R. Tobin, Goodsill Anderson Quinn & Stifel LLP, Honolulu, Hawai'i; Daniel L. McFadden, Christopher E. Hart, Kristyn DeFilipp, and Michael B. Keating, Foley Hoag LLP, Boston, Massachusetts, for Amicus Curiae Massachusetts Technology Leadership Council, Inc.

          Avi Gesser, Ilan Stein, Jennifer Prevete, Alex Messiter, Joseph Garmon, and Kelsey Clark, Davis Polk & Wardwell LLP, New York, New York, for Amici Curiae Association of Art Museum Directors, American Alliance of Museums, Association of Academic Museums and Galleries, College Art Association, and 101 Art Museums.

          Herbert W. Titus, Jeremiah L. Morgan, William J. Olson, and Robert J. Olson, William J. Olson P.C., Vienna, Virginia; Michael Boos, Citizens United, Washington, D.C.; Joseph W. Miller, U.S. Justice Foundation, Ramona, California; for Amici Curiae U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, and Policy Analysis Center.

          Benjamin G. Shatz, Ketakee Kane, Olufunmilayo Showole, Matthew Bottomly, Sirena Castillo, John W. McGuinness, and Amy Briggs, Manatt Phelps & Phillips LLP, Los Angeles, California, for Amici Curiae Muslim Justice League, Islamic Circle of North America, and Council of American-Islamic Relations, California.

          Claire Loebs Davis, Taylor Washburn, and Jessica N. Walder, Lane Powell PC, Seattle, Washington, for Amici Curiae Law Professors.

          Lena F. Masri, National Litigation Director, Council on American-Islamic Relations, Washington, D.C.; Gadeir I. Abbas, Law Office of Gadeir Abbas, Washington, D.C.; for Amici Curiae Muslim Civil Rights Activists Linda Sarsour, Rashida Tlaib, Zahra Billoo, Basim Elkarra, Hussam Ayloush, Alia Salem, Adam Soltani, Imraan Siddiqi, Namira Islam, Karen Dabdoub, Jim Sues, Hanif Mohebi, and Jaylani Hussein.

          Ester Sung, Melissa S. Keaney, Nicholas Espíritu, and Karen C. Tumlin, National Immigration Law Center, Los Angeles, California; Justin B. Cox, National Immigration Law Center, Atlanta, Georgia; Mark Doss, Lara Finkbeiner, Stephen Poellot, and Rebecca Heller, International Refugee Assistance Project at the Urban Justice Center, New York, New York; for Amici Curiae National Immigration Law Center and International Refugee Assistance Project.

          Nicole Y. Altman, Goodsill Anderson Quinn & Stifel LLP, Honolulu, Hawai'i; Lilly Landsman-Roos and John B. Harris, Frankfurt Kurnit Klein & Selz PC, New York, New York; Michael Lieberman, Melissa Garlick, Lauren A. Jones, and Steven M. Freeman, Anti-Defamation League, New York, New York; Doron F. Ezickson, Anti-Defamation League, Washington, D.C.; Alyssa T. Saunders and David E. Mills, Cooley LLP, Washington, D.C.; David Bohm, Danna McKintrick P.C., St. Louis, Missouri; for Amici Curiae Anti-Defamation League, Jewish Council for Public Affairs, Union for Reform Judaism, Central Conference of American Rabbis, and Women of Reform Judaism.

          Alan C. Turner, Simpson Thacher & Bartlett LLP, New York, New York; Jonathan Mincer and Harrison Frahn, Simpson Thacher & Bartlett LLP, Palo Alto, California; for Amici Curiae Human Rights First, Kids in Need of Defense (KIND), City Bar Justice Center, Community Legal Services in East Palo Alto, Catholic Migration Services, the Door's Legal Services Center, Safe Passage Project, and Sanctuary for Families.

          Matthew E. Sloan, Alyssa J. Clover, Richard A. Schwartz, and Allison B. Holcombe, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, California; Jennifer H. Berman and Eric J. Gorman, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, Illinois; Jonathan Fombonne, Sarah Grossnickle, and Noelle M. Reed, Skadden, Arps, Slate, Meagher & Flom LLP, Houston, Texas; Joseph M. Sandman, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C.; Aaron Morris, Immigration Equality, New York, New York; Virginia M. Goggin, New York City Gay and Lesbian Anti-Violence Project, New York, New York; Glenn Magpantay, The National Queer Asian Pacific Islander Alliance, New York, New York; for Amici Curiae Immigration Equality, New York City Gay and Lesbian Anti-Violence Project, and National Queer Asian Pacific Islander Alliance.

          Lynn Lincoln Sarko, Alison S. Gaffney, Derek W. Loeser, Amy Williams-Derry, and Tana Lin, Keller Rohrback L.L.P., Seattle, Washington; La Rond Baker and Emily Chiang, American Civil Liberties Union of Washington Foundation, Seattle, Washington; Laurie B. Ashton, Keller Rohrback L.L.P., Phoenix, Arizona; Alison Chase, Keller Rohrback L.L.P., Santa Barbara, California; for Amici Curiae Joseph Doe, James Doe, and the Episcopal Diocese of Olympia.

          Patricia S. Rose, Seattle, Washington, for Amici Curiae One Million Kids for Equality and African Human Rights Coalition.

          Before: Michael Daly Hawkins, Ronald M. Gould, and Richard A. Paez, Circuit Judges.

          OPINION [1]

          PER CURIAM.

         We are asked to delineate the statutory and constitutional limits to the President's power to control immigration in this appeal of the district court's order preliminarily enjoining two sections of Executive Order 13780 ("EO2" or "the Order"), "Protecting the Nation From Foreign Terrorist Entry Into the United States." The Immigration and Nationality Act ("INA") gives the President broad powers to control the entry of aliens, and to take actions to protect the American public. But immigration, even for the President, is not a one-person show. The President's authority is subject to certain statutory and constitutional restraints. We conclude that the President, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress. In suspending the entry of more than 180 million nationals from six countries, suspending the entry of all refugees, and reducing the cap on the admission of refugees from 110, 000 to 50, 000 for the 2017 fiscal year, the President did not meet the essential precondition to exercising his delegated authority: The President must make a sufficient finding that the entry of these classes of people would be "detrimental to the interests of the United States." Further, the Order runs afoul of other provisions of the INA that prohibit nationality-based discrimination and require the President to follow a specific process when setting the annual cap on the admission of refugees. On these statutory bases, we affirm in large part the district court's order preliminarily enjoining Sections 2 and 6 of the Executive Order.



         One week after inauguration and without interagency review, President Donald J. Trump issued Executive Order 13769 ("EO1"). Exec. Order No. 13769, 82 Fed. Reg. 8977 (Jan. 27, 2017).[2] Entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States, " EO1's stated purpose was to "protect the American people from terrorist attacks by foreign nationals admitted to the United States." Id. EO1 recited that "[n]umerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program." Id.

         EO1 mandated two main courses of action to assure that the United States remain "vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism." Id. In Section 3, the President invoked his authority under 8 U.S.C. § 1182(f) to suspend for 90 days immigrant and nonimmigrant entry into the United States of nationals from seven majority-Muslim countries: Iraq, Iran, Libya, Sudan, Somalia, Syria, and Yemen. See id. at 8978. In Section 5, the President immediately suspended the U.S. Refugee Admissions Program ("USRAP") for 120 days, imposed a ban of indefinite duration on the entry of refugees from Syria, and limited the entry of refugees to 50, 000 in fiscal year 2017. Id. at 8979. EO1 also ordered that changes be made to the refugee screening process "to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality." Id. EO1 permitted the Secretaries of State and Homeland Security to make case-by-case exceptions to these restrictions "when in the national interest, " and explained that it would be in the national interest "when the person is a religious minority in his country of nationality facing religious persecution." Id.

         EO1 took immediate effect, causing great uncertainty as to the scope of the order, particularly in its application to lawful permanent residents. Notably, federal officials themselves were unsure as to the scope of EO1, which caused mass confusion at airports and other ports of entry. See Brief of the Foundation of Children of Iran and Iranian Alliance Across Borders as Amici Curiae, Dkt. No. 77 at 11-12 (describing how an Iranian visa holder was turned away while en route to the United States because of the confusion regarding the contours of EO1's scope); Brief of Former National Security Officials as Amici Curiae, Dkt. No. 108 at 25 n.53 & 54 (noting confusion at airports because officials were neither consulted nor informed of EO1 in advance).

         Shortly after EO1 issued, the States of Washington and Minnesota filed suit in the Western District of Washington to enjoin EO1. On February 3, 2017, the district court granted a temporary restraining order ("TRO"). Washington v. Trump, No. C17-0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017). On February 4, 2017, the Government filed an emergency motion in our court, seeking a stay of the TRO pending appeal.

         On February 9, 2017, this court denied the Government's emergency motion for a stay of the injunction. Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) (per curiam), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017). In so doing, the panel rejected the Government's arguments that EO1 was wholly unreviewable. See id. at 1161-64. After determining that the states had standing based on the alleged harms to their proprietary interests, id. at 1159-61, this court concluded that the states demonstrated a likelihood of success on their procedural due process claim, at least as to lawful permanent residents and nonimmigrant visa holders, id. at 1164-66. The panel did not review the states' other claims, including the statutory-based claims. Id. at 1164.

         Rather than continue with the litigation, the Government filed an unopposed motion to voluntarily dismiss the underlying appeal after the President signed EO2. On March 8, 2017, this court granted that motion, which substantially ended the story of EO1. The curtain opens next to the present controversy regarding EO2.


         On March 6, 2017, the President issued EO2, also entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States." Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar. 6, 2017). The revised Order was to take effect on March 16, 2017, at which point EO1 would be revoked. Id. at 13218. The Order expressly stated that EO1 "did not provide a basis for discriminating for or against members of any particular religion" and was "not motivated by animus toward any religion." Id. at 13210.

         Section 2-"Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period"-reinstates the 90-day ban on travel for nationals of six of the seven majority-Muslim countries identified in EO1: Iran, Libya, Somalia, Sudan, Syria, and Yemen. Id. at 13213. Section 2 also directs the Secretary of Homeland Security, the Secretary of State, and the Director of National Intelligence to "conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat." Id. at 13212. Section 2(c) states in full:

To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. [§§] 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.

Id. at 13213.

Regarding the six identified countries, EO2 explains:
Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents.

Id. at 13210. Based on the conditions of these six countries, "the risk of erroneously permitting entry of a national of one of these countries who intends to commit terrorist acts or otherwise harm the national security of the United States is unacceptably high." Id. at 13211.

         The Order states that it no longer includes Iraq on the list of designated countries because of Iraq's "close cooperative relationship" with the United States and its recent efforts to enhance its travel documentation procedures. Id. at 13212. The Order also states that its scope has been narrowed from EO1 in response to "judicial concerns" about the suspension of entry with respect to certain categories of aliens. Id. EO2 applies only to individuals outside of the United States who do not have a valid visa as of the issuance of EO1 or EO2. EO2, unlike EO1, expressly exempts lawful permanent residents, dual citizens traveling under a passport issued by a country not on the banned list, asylees, and refugees already admitted to the United States. See id. at 13213-14. The Order also provides that consular officers or Customs and Border Protection officials can exercise discretion in authorizing case-by-case waivers to issue visas and grant entry during the suspension period, and offers examples of when waivers "could be appropriate." See id. at 13214-15.

         Section 6-"Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017"-suspends USRAP for 120 days. Id. at 13215. During this period, the heads of certain executive agencies are directed to review the current USRAP application and adjudication processes, and to determine the additional procedures that "should" be required for individuals seeking admission as refugees. See id. at 13215-16. Invoking 8 U.S.C. § 1182(f), Section 6(b) reduces the number of refugees to be admitted from 110, 000 to 50, 000 in fiscal year 2017. Id. at 13216. The Order also removes EO1's preference for refugees facing persecution as a member of a minority religion, and no longer imposes a complete ban on Syrian refugees. Section 6 further provides for discretionary case-by-case waivers. Id.

         EO2 supplies additional information relevant to national security concerns. The Order includes excerpts from the State Department's 2015 Country Reports on Terrorism, that it asserts demonstrate "why . . . nationals [from the designated countries] continue to present heightened risk to the security of the United States." Id. at 13210; see id. at 13210-11 (providing a brief description of country conditions for each of the designated countries). The Order states that foreign nationals and refugees have committed acts of terrorism:

Recent history shows that some of those who have entered the United States through our immigration system have proved to be threats to our national security. Since 2001, hundreds of persons born abroad have been convicted of terrorism-related crimes in the United States. They have included not just persons who came here legally on visas but also individuals who first entered the country as refugees. For example, 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. 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 sentenced to 30 years in prison for attempting to use a weapon of mass destruction as part of a plot to detonate a bomb at a crowded Christmas-tree-lighting ceremony in Portland, Oregon. The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.

Id. at 13212. EO2 does not discuss any instances of domestic terrorism involving nationals from Iran, Libya, Sudan, Syria, or Yemen.


         Two versions of a report from the Department of Homeland Security ("DHS") surfaced after EO1 issued. First, a draft report from DHS, prepared about one month after EO1 issued and two weeks prior to EO2's issuance, concluded that citizenship "is unlikely to be a reliable indicator of potential terrorist activity" and that citizens of countries affected by EO1 are "[r]arely [i]mplicated in U.S.-[b]ased [t]errorism." Specifically, the DHS report determined that since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries-with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Id. Of the six countries included in EO2, only Somalia was identified as being among the "top" countries-of-origin for the terrorists analyzed in the report. During the time period covered in the report, three offenders were from Somalia; one was from Iran, Sudan, and Yemen each; and none was from Syria or Libya. The final version of the report, issued five days prior to EO2, concluded "that most foreign-born, [U.S.]-based violent extremists likely radicalized several years after their entry to the United States, [thus] limiting the ability of screening and vetting officials to prevent their entry because of national security concerns" (emphasis added).

         The same day EO2 issued, Attorney General Jefferson B. Sessions III and Secretary of Homeland Security John F. Kelly submitted a letter to the President recommending that he "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."


         The State of Hawai'i ("the State") filed a motion for a TRO seeking to enjoin EO1, which the District of Hawai'i did not rule on because of the nationwide TRO entered in the Western District of Washington. After EO2 issued, the State filed an amended complaint challenging EO2 in order "to protect its residents, its employers, its educational institutions, and its sovereignty." Dr. Elshikh, the Imam of the Muslim Association of Hawai'i, joined the State's challenge because the Order "inflicts a grave injury on Muslims in Hawai'i, including Dr. Elshikh, his family, and members of his Mosque." In 2015, Dr. Elshikh's wife filed an I-130 Petition for Alien Relative on behalf of her mother- Dr. Elshikh's mother-in-law-a Syrian national living in Syria. Dr. Elshikh fears that his mother-in-law will not be able to enter the United States if EO2 is implemented. Plaintiffs named as Defendants Donald J. Trump, in his official capacity as President of the United States; the U.S. Department of Homeland Security; John F. Kelly, in his official capacity as Secretary of Homeland Security; the U.S. Department of State; Rex W. Tillerson, in his official capacity as Secretary of State; and the United States of America (collectively referred to as "the Government").

         Plaintiffs allege that EO2 suffers similar constitutional and statutory defects as EO1 and claim that the Order violates: the Establishment Clause of the First Amendment; the equal protection guarantees of the Fifth Amendment's Due Process Clause on the basis of religion and/or national origin, nationality, or alienage; the Due Process Clause of the Fifth Amendment based on substantive due process rights; the Due Process Clause of the Fifth Amendment based on procedural due process rights; the Immigration and Nationality Act; the Religious Freedom Restoration Act; and the Administrative Procedure Act. For their INA claim, Plaintiffs specifically 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.[3] Plaintiffs also filed a motion for a TRO along with their amended complaint.

         On March 15, 2017, the district court granted the TRO, holding that Plaintiffs had shown a likelihood of success on the merits of their Establishment Clause claim, and entered a nationwide injunction prohibiting enforcement of Sections 2 and 6 of EO2. See Hawai'i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1011673 (D. Haw. Mar. 15, 2017) ("Hawai'i TRO"). On March 29, 2017, the district court granted Plaintiffs' motion to convert the TRO to a preliminary injunction. See Hawai'i v. Trump, No. CV 17-00050 DKW-KSC, 2017 WL 1167383 (D. Haw. Mar. 29, 2017) ("Hawai'i PI"). The district court declined to narrow the scope of the injunction, concluding that the entirety of Sections 2 and 6 of the Order ran afoul of the Establishment Clause and that the Government did not provide a workable framework for narrowing the scope of the enjoined conduct. See id. at *8. The court entered the following injunction:

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 ...

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