SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–1436 (16A1190) and 16–1540
(16A1191)
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al.
No. 16–1436 (16A1190)
v.
INTERNATIONAL REFUGEE ASSISTANCE
PROJECT, et al.
on application for stay and petition for writ
of certiorari to the united states court of appeals for the fourth
circuit
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, et al.
No. 16–1540 (16A1191)
v.
HAWAII, et al.
on application for stay and petition for writ
of certiorari to the united states court of appeals for the ninth
circuit
[June 26, 2017]
Per Curiam.
These cases involve challenges to Executive
Order No. 13780, Protecting the Nation From Foreign Terrorist Entry
Into the United States. The order alters practices concerning the
entry of foreign nationals into the United States by, among other
things, suspending entry of nationals from six designated countries
for 90 days. Respondents challenged the order in two separate
lawsuits. They obtained preliminary injunctions barring enforcement
of several of its provisions, including the 90-day suspension of
entry. The injunctions were upheld in large measure by the Courts
of Appeals.
The Government filed separate petitions for
certiorari, as well as applications to stay the preliminary
injunctions entered by the lower courts. We grant the petitions for
certiorari and grant the stay applications in part.
I
A
On January 27, 2017, President Donald J. Trump
signed Executive Order No. 13769, Protecting the Nation From
Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977
(EO–1). EO–1 addressed policies and procedures relating to the
entry of foreign nationals into this country. Among other
directives, the order suspended entry of foreign nationals from
seven countries identified as presenting heightened terrorism
risks—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—for 90
days. §3(c). Executive officials were instructed to review the
adequacy of current practices relating to visa adjudications during
this 90-day period. §3(a). EO–1 also modified refugee policy,
suspending the United States Refugee Admissions Program (USRAP) for
120 days and reducing the number of refugees eligible to be
admitted to the United States during fiscal year 2017. §§5(a),
(d).
EO–1 was immediately challenged in court. Just a
week after the order was issued, a Federal District Court entered a
nationwide temporary restraining order enjoining enforcement of
several of its key provisions.
Washington v.
Trump,
2017 WL 462040 (WD Wash., Feb. 3, 2017). Six days later, the Court
of Appeals for the Ninth Circuit denied the Government’s emergency
motion to stay the order pending appeal.
Washington v.
Trump, 847 F. 3d 1151 (2017). Rather than continue to
litigate EO–1, the Government announced that it would revoke the
order and issue a new one.
A second order followed on March 6, 2017. See
Protecting the Nation From Foreign Terrorist Entry Into the United
States, Exec. Order No. 13780, 82 Fed. Reg. 13209 (EO–2). EO–2
describes “conditions in six of the . . . countries” as
to which EO–1 had suspended entry, stating that these conditions
“demonstrate [that] nationals [of those countries] continue to
present heightened risks to the security of the United States,”
§1(e), and that “some of those who have entered the United States
through our immigration system have proved to be threats to our
national security,” §1(h).
Having identified these concerns, EO–2 sets out
a series of directives patterned on those found in EO–1. Several
are relevant here. First, EO–2 directs the Secretary of Homeland
Security to conduct a global review to determine whether foreign
governments provide adequate information about nationals applying
for United States visas. §2(a). EO–2 directs the Secretary to
report his findings to the President within 20 days of the order’s
“effective date,” after which time those nations identified as
deficient will be given 50 days to alter their practices. §§2(b),
(d)–(e).
Second, EO–2 directs that entry of nationals
from six of the seven countries designated in EO–1—Iran, Libya,
Somalia, Sudan, Syria, and Yemen—be “suspended for 90 days from the
effective date” of the order. §2(c). EO–2 explains that this pause
is necessary to ensure that dangerous individuals do not enter the
United States while the Executive is working to establish “adequate
standards . . . to prevent infiltration by foreign
terrorists”; in addition, suspending entry will “temporarily reduce
investigative burdens on agencies” during the Secretary’s 20-day
review.
Ibid. A separate section provides for case-by-case
waivers of the entry bar. §3(c).
Third, EO–2 suspends “decisions on applications
for refugee status” and “travel of refugees into the United States
under the USRAP” for 120 days following its effective date. §6(a).
During that period, the Secretary of State is instructed to review
the adequacy of USRAP application and adjudication procedures and
implement whatever additional procedures are necessary “to ensure
that individuals seeking admission as refugees do not pose a
threat” to national security.
Ibid.
Fourth, citing the President’s determination
that “the entry of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United States,” EO–2
“suspend[s] any entries in excess of that number” for this fiscal
year. §6(b).
Finally, §14 of EO–2 establishes the order’s
effective date: March 16, 2017.
B
Respondents in these cases filed separate
lawsuits challenging EO–2. As relevant, they argued that the order
violates the Establishment Clause of the First Amendment because it
was motivated not by concerns pertaining to national security, but
by animus toward Islam. They further argued that EO–2 does not
comply with certain provisions in the Immigration and Nationality
Act (INA), 66Stat. 187, as amended.
In No. 16–1436, a Federal District Court
concluded that respondents were likely to succeed on their
Establishment Clause claim with respect to §2(c) of EO–2—the
provision temporarily suspending entry from six countries—and
entered a nationwide preliminary injunction barring the Government
from enforcing §2(c) against any foreign national seeking entry to
the United States.
International Refugee Assistance Project
v.
Trump, ___ F. Supp. 3d ___, 2017 WL 1018235 (D Md.,
Mar. 16, 2017) (
IRAP). The District Court in No.
16–1540—likewise relying on the Establishment Clause—entered a
broader preliminary injunction: The court enjoined nationwide
enforcement of all of §§2 and 6.
Hawaii v.
Trump, ___
F. Supp. 3d ___, 2017 WL 1167383 (D Haw., Mar. 29, 2017)
(entering preliminary injunction); ___ F. Supp. 3d ___, 2017
WL 1011673 (D Haw., Mar. 15, 2017) (entering temporary restraining
order). In addition to the §2(c) suspension of entry, this
injunction covered the §6(a) suspension of refugee admissions, the
§6(b) reduction in the refugee cap, and the provisions in §§2 and 6
pertaining only to internal executive review.
These orders, entered before EO–2 went into
effect, prevented the Government from initiating enforcement of the
challenged provisions. The Government filed appeals in both
cases.
The Court of Appeals for the Fourth Circuit
ruled first. On May 25, over three dissenting votes, the en banc
court issued a decision in
IRAP that largely upheld the
order enjoining enforcement of §2(c). 857 F. 3d 554. The
major-ity determined that respondent John Doe #1, a lawful
permanent resident whose Iranian wife is seeking entry to the
United States, was likely to succeed on the merits of his
Establishment Clause claim. The majority concluded that the primary
purpose of §2(c) was religious, in violation of the First
Amendment: A reasonable observer familiar with all the
circumstances—including the predominantly Muslim character of the
designated countries and statements made by President Trump during
his Presidential campaign—would conclude that §2(c) was moti-vated
principally by a desire to exclude Muslims from the United States,
not by considerations relating to national security. Having reached
this conclusion, the court upheld the preliminary injunction
prohibiting enforcement of §2(c) against any foreign national
seeking to enter this country.
On June 1, the Government filed a petition for
certiorari seeking review of the Fourth Circuit’s decision. It also
filed applications seeking stays of both injunctions, including the
Hawaii injunction still pending before the Ninth Circuit. In
addition, the Government requested that this Court expedite the
certiorari stage briefing. We accordingly directed respondents to
file responses to the stay appli-cations by June 12 and respondents
in
IRAP to file a brief in opposition to the Government’s
petition for certiorari by the same day.
Respondents’ June 12 filings injected a new
issue into the cases. In
IRAP, respondents argued that the
suspension of entry in §2(c) would expire on June 14. Section 2(c),
they reasoned, directs that entry “be suspended for 90 days from
the effective date of” EO–2. The “effective date” of EO–2 was March
16. §14. Although courts had enjoined portions of EO–2, they had
not altered its effective date, nor so much as mentioned §14. Thus,
even though it had never been enforced, the entry suspension would
expire 90 days from March 16: June 14. At that time, the dispute
over §2(c) would become moot. Brief in Opposition 13–14.
On the same day respondents filed, the Ninth
Circuit ruled in
Hawaii. ___ F. 3d ___, 2017 WL 2529640
(June 12, 2017) (
per curiam). A unanimous panel held
in favor of respondents the State of Hawaii and Dr. Ismail Elshikh,
an American citizen and imam whose Syrian mother-in-law is seeking
entry to this country. Rather than rely on the constitutional
grounds supporting the District Court’s decision, the court held
that portions of EO–2 likely exceeded the President’s authority
under the INA. On that basis it upheld the injunction as to the
§2(c) entry suspension, the §6(a) suspension of refugee admissions,
and the §6(b) refugee cap. The Ninth Circuit, like the Fourth
Circuit, concluded that the injunction should bar enforcement of
these provisions across the board, because they would violate the
INA “in all applications.”
Id., at *28. The court did,
however, narrow the injunction so that it would not bar the
Government from undertaking the internal executive reviews directed
by EO–2.
We granted the parties’ requests for
supplemental briefing addressed to the decision of the Ninth
Circuit. Before those briefs were filed, however, the ground
shifted again. On June 14, evidently in response to the argument
that §2(c) was about to expire, President Trump issued a memorandum
to Executive Branch officials. The memorandum declared the
effective date of each enjoined provision of EO–2 to be the date on
which the injunctions in these cases “are lifted or stayed with
respect to that provision.” Presidential Memorandum for the
Secretary of State, the Attorney General, the Secretary of Homeland
Security, and the Director of National Intelligence (June 14,
2017). The memorandum further provided that, to the extent
necessary, it “should be construed to amend the Executive Order.”
Ibid. The Government takes the view that, if any mootness
problem existed previously, the President’s memorandum has cured
it.
The parties have since completed briefing, with
the Government requesting that we construe its supplemental brief
in
Hawaii as a petition for certiorari. There is no
objection from respondents, and we do so. Both petitions for
certiorari and both stay applications are accordingly ripe for
consideration.
II
The Government seeks review on several issues.
In
IRAP, the Government argues that respondent Doe lacks
standing to challenge §2(c).[
1]* The Government also contends that Doe’s Establishment
Clause claim fails on the merits. In its view, the Fourth Circuit
should not have asked whether §2(c) has a primarily religious
purpose. The court instead should have upheld EO–2 because it rests
on the “facially legitimate and bona fide” justification of
protecting national security.
Kleindienst v.
Mandel,
408 U. S. 753, 770 (1972). In addition, the Fourth Circuit
erred by focusing on the President’s campaign-trail comments to
conclude that §2(c)—religiously neutral on its face—nonetheless has
a principally religious purpose. At the very least, the Government
argues, the injunction is too broad.
In
Hawaii, the Government likewise argues
that respondents Hawaii and Dr. Elshikh lack standing and that (at
a minimum) the injunction should be narrowed. The Government’s
principal merits contention pertains to a statutory provision
authorizing the President to “suspend the entry of all aliens or
any class of aliens” to this country “[w]henever [he] finds that
the entry of any aliens or of any class of aliens . . .
would be detrimental to the interests of the United States.” 8
U. S. C. §1182(f). The Ninth Circuit held that “[t]here
is no sufficient finding in [EO–2] that the entry of the excluded
classes would be detrimental to the interests of the United
States.”
Hawaii, 2017 WL 2529640, at *14. This, the
Government argues, constitutes impermissible judicial
second-guessing of the President’s judgment on a matter of national
security.
In addition to seeking certiorari, the
Government asks the Court to stay the injunctions entered below,
thereby permitting the enjoined provisions to take effect.
According to the Government, it is likely to suffer irreparable
harm unless a stay issues. Focusing mostly on §2(c), and pointing
to the descriptions of conditions in the six designated nations,
the Government argues that a 90-day pause on entry is necessary to
prevent potentially dangerous individuals from entering the United
States while the Executive reviews the adequacy of information
provided by foreign governments in connection with visa
adjudications. Additionally, the Government asserts, the temporary
bar is needed to reduce the Executive’s investigative burdens while
this review proceeds.
A
To begin, we grant both of the Government’s
petitions for certiorari and consolidate the cases for argument.
The Clerk is directed to set a briefing schedule that will permit
the cases to be heard during the first session of October Term
2017. (The Government has not requested that we expedite
consideration of the merits to a greater extent.) In addition to
the issues identified in the petitions, the parties are directed to
address the following question: “Whether the challenges to §2(c)
became moot on June 14, 2017.”
B
We now turn to the preliminary injunctions
barring enforcement of the §2(c) entry suspension. We grant the
Government’s applications to stay the injunctions, to the extent
the injunctions prevent enforcement of §2(c) with respect to
foreign nationals who lack any bona fide relationship with a person
or entity in the United States. We leave the injunctions entered by
the lower courts in place with respect to respondents and those
similarly situated, as specified in this opinion. See
infra,
at 11–12.
Crafting a preliminary injunction is an exercise
of discretion and judgment, often dependent as much on the equities
of a given case as the substance of the legal issues it presents.
See
Winter v.
Natural Resources Defense Council,
Inc., 555 U. S. 7, 20, 24 (2008) ; 11A C. Wright, A.
Miller, & M. Kane, Federal Practice and Procedure §2948 (3d ed.
2013). The purpose of such interim equitable relief is not to
conclusively determine the rights of the parties,
University of
Tex. v.
Camenisch, 451 U. S. 390, 395 (1981) , but
to balance the equities as the litigation moves forward. In
awarding a preliminary injunction a court must also “conside[r]
. . . the overall public interest.”
Winter,
supra, at 26. In the course of doing so, a court “need not
grant the total relief sought by the applicant but may mold its
decree to meet the exigencies of the particular case.” Wright,
supra, §2947, at 115.
Here, of course, we are not asked to grant a
preliminary injunction, but to stay one. In assessing the lower
courts’ exercise of equitable discretion, we bring to bear an
equitable judgment of our own.
Nken v.
Holder, 556
U. S. 418, 433 (2009) . Before issuing a stay, “[i]t is
ultimately necessary . . . to balance the equities—to
explore the relative harms to applicant and respondent, as well as
the interests of the public at large.”
Barnes v.
E-Systems, Inc. Group Hospital Medical & Surgical Ins.
Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in
chambers) (internal quotation marks omitted). This Court may, in
its discretion, tailor a stay so that it operates with respect to
only “some portion of the proceeding.”
Nken,
supra,
at 428.
The courts below took account of the equities in
fashioning interim relief, focusing specifically on the concrete
burdens that would fall on Doe, Dr. Elshikh, and Hawaii if §2(c)
were enforced. They reasoned that §2(c) would “directly affec[t]”
Doe and Dr. Elshikh by delaying entry of their family members to
the United States.
IRAP, 857 F. 3d, at 585, n. 11; see
Hawaii, 2017 WL 2529640, at *7–*8, *24. The Ninth Circuit
concluded that §2(c) would harm the State by preventing students
from the desig-nated nations who had been admitted to the
University of Hawaii from entering this country. These hardships,
the courts reasoned, were sufficiently weighty and immediate to
outweigh the Government’s interest in enforcing §2(c). Having
adopted this view of the equities, the courts approved injunctions
that covered not just respondents, but parties similarly situated
to them—that is, people or entities in the United States who have
relationships with foreign nationals abroad, and whose rights might
be affected if those foreign nationals were excluded. See
Mandel, 408 U. S., at 763–765 (permitting American
plaintiffs to challenge the exclusion of a foreign national on the
ground that the exclusion violated their own First Amendment
rights).
But the injunctions reach much further than
that: They also bar enforcement of §2(c) against foreign nationals
abroad who have no connection to the United States at all. The
equities relied on by the lower courts do not balance the same way
in that context. Denying entry to such a foreign national does not
burden any American party by reason of that party’s relationship
with the foreign national. And the courts below did not conclude
that exclusion in such circumstances would impose any legally
relevant hardship on the foreign national himself. See
id.,
at 762 (“[A]n unadmitted and nonresident alien . . .
ha[s] no constitutional right of entry to this country”). So
whatever burdens may result from enforcement of §2(c) against a
foreign national who lacks any connection to this country, they
are, at a minimum, a good deal less concrete than the hardships
identified by the courts below.
At the same time, the Government’s interest in
enforcing §2(c), and the Executive’s authority to do so, are
undoubtedly at their peak when there is no tie between the foreign
national and the United States. Indeed, EO–2 itself distinguishes
between foreign nationals who have some connection to this country,
and foreign nationals who do not, by establishing a case-by-case
waiver system primarily for the benefit of individuals in the
former cate-gory. See,
e.g., §§3(c)(i)–(vi). The interest in
preserving national security is “an urgent objective of the highest
order.”
Holder v.
Humanitarian Law Project, 561
U. S. 1, 28 (2010) . To prevent the Government from pursuing
that objective by enforcing §2(c) against foreign nationals
unconnected to the United States would appreciably injure its
interests, without alleviating obvious hardship to anyone else.
We accordingly grant the Government’s stay
applications in part and narrow the scope of the injunctions as to
§2(c). The injunctions remain in place only with respect to parties
similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical
terms, this means that §2(c) may not be enforced against foreign
nationals who have a credible claim of a bona fide relationship
with a person or entity in the United States. All other foreign
nationals are subject to the provisions of EO–2.
The facts of these cases illustrate the sort of
relationship that qualifies. For individuals, a close familial
relationship is required. A foreign national who wishes to enter
the United States to live with or visit a family member, like Doe’s
wife or Dr. Elshikh’s mother-in-law, clearly has such a
relationship. As for entities, the relationship must be formal,
documented, and formed in the ordinary course, rather than for the
purpose of evading EO–2. The students from the designated countries
who have been admitted to the University of Hawaii have such a
relationship with an American entity. So too would a worker who
accepted an offer of employment from an American company or a
lecturer invited to address an American audience. Not so someone
who enters into a relationship sim-ply to avoid §2(c): For example,
a nonprofit group devoted to immigration issues may not contact
foreign nationals from the designated countries, add them to client
lists, and then secure their entry by claiming injury from their
exclusion.
In light of the June 12 decision of the Ninth
Circuit vacating the injunction as to §2(a), the executive review
directed by that subsection may proceed promptly, if it is not
already underway. EO–2 instructs the Secretary of Homeland Security
to complete this review within 20 days, after which time foreign
governments will be given 50 days further to bring their practices
into line with the Secretary’s directives. §§2(a)–(b), (d). Given
the Government’s representations in this litigation concerning the
resources required to complete the 20-day review, we fully expect
that the relief we grant today will permit the Executive to
conclude its internal work and provide adequate notice to foreign
governments within the 90-day life of §2(c).
C
The
Hawaii injunction extends beyond
§2(c) to bar enforcement of the §6(a) suspension of refugee
admissions and the §6(b) refugee cap. In our view, the equitable
balance struck above applies in this context as well. An American
individual or entity that has a bona fide relationship with a
particular person seeking to enter the country as a refugee can
legitimately claim concrete hardship if that person is excluded. As
to these individuals and entities, we do not disturb the
injunction. But when it comes to refugees who lack any such
connection to the United States, for the reasons we have set out,
the balance tips in favor of the Government’s compelling need to
provide for the Nation’s security. See
supra, at 9–11;
Haig v.
Agee, 453 U. S. 280, 307 (1981) .
The Government’s application to stay the
injunction with respect to §§6(a) and (b) is accordingly granted in
part. Section 6(a) may not be enforced against an individual
seeking admission as a refugee who can credibly claim a bona fide
relationship with a person or entity in the United States. Nor may
§6(b); that is, such a person may not be excluded pursuant to
§6(b), even if the 50,000-person cap has been reached or exceeded.
As applied to all other individuals, the provisions may take
effect.
* * *
Accordingly, the petitions for certiorari are
granted, and the stay applications are granted in part.
It is so ordered.
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