John Doe 1 v. Donald Trump

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN DOE #1; JUAN RAMON No. 19-36020

MORALES; JANE DOE, # 2; IRIS

ANGELINA CASTRO; BLAKE DOE; D.C. No.

BRENDA VILLARRUEL; LATINO 3:19-cv-01743-SI

NETWORK; JANE DOE, # 3; GABINO

SORIANO CASTELLANOS,

Plaintiffs-Appellees, ORDER

v.

DONALD J. TRUMP, in his official

capacity as President of the United

States; U.S. DEPARTMENT OF

HOMELAND SECURITY; CHAD F.

WOLF, Secretary, U.S. Department

of Homeland Security; U.S.

DEPARTMENT OF HEALTH & HUMAN

SERVICES; ALEX M. AZAR II,

Secretary of Health and Human

Services; U.S. DEPARTMENT OF

STATE; MICHAEL POMPEO, Secretary

of State, in his official capacity;

UNITED STATES OF AMERICA,

Defendants-Appellants.

2 DOE #1 V. TRUMP

Filed May 4, 2020

Before: Sidney R. Thomas, Chief Judge, and Marsha S.

Berzon and Daniel A. Bress, Circuit Judges.

Order by Chief Judge Thomas;

Dissent by Judge Bress

SUMMARY*

Immigration / Preliminary Injunction

The panel denied the government’s motion for a stay

pending appeal of the district court’s preliminary injunction

enjoining Presidential Proclamation No. 9945, Suspension of

Entry of Immigrants Who Will Financially Burden the United

States Health Care System.

Issued on October 4, 2019, the Proclamation barred, with

some exceptions, individuals seeking to enter the United

States on an immigrant visa from entering unless they could

demonstrate that they will be covered by certain approved

health insurance within 30 days of entry or that they have the

resources to cover foreseeable healthcare costs. Individual

Plaintiffs are seven U.S. citizens who are sponsoring family

members for immigrant visas and whose applicant family

members have successfully completed the traditional steps for

obtaining an immigrant visa, but would be barred from

entering the United States under the Proclamation. The

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

DOE #1 V. TRUMP 3

organizational Plaintiff provides programs aimed at educating

and empowering a community of Latinos in Oregon and

provides services to navigate the immigrant visa process.

First, the panel concluded that the government failed to

meet its burden of showing irreparable harm absent a stay,

explaining that: 1) the government’s perceived institutional

injury is not “irreparable” because the government may yet

vindicate its interests in this litigation; 2) the government’s

claim of harm in the form of costs to healthcare providers and

taxpayers by uninsured immigrants was not supported by the

record, and the court was not required to accept the

Proclamation’s conclusory findings as true; and 3) the harm

asserted by the government is purely monetary, and such

injury is not normally considered irreparable.

The panel also concluded that the record amply supported

the district court’s conclusion that Plaintiffs would suffer

irreparable harm absent preliminary injunctive relief. The

panel explained that, based on findings that Plaintiffs and

60% of visa applicants would be unable to satisfy the

requirements of the Proclamation, the district court concluded

that the Proclamation would result in prolonged separation

from family members, a factor that this court has held

constitutes sufficient irreparable harm.

The panel noted that its analysis could conclude here,

given that if a stay applicant cannot show irreparable harm,

a stay may not issue, regardless of the petitioner’s proof

regarding the other stay factors, but concluded that the

context of this case suggested that the panel should proceed

with examining the remaining factors.

4 DOE #1 V. TRUMP

Second, the panel concluded that the government had not

met the high standard of showing a strong likelihood of

success on the merits. In doing so, the panel observed that,

as a motions panel, it must take care not to prejudge the

merits of the appeal, but rather to assess the posture of the

case in the context of the necessity of a stay pending

presentation to a merits panel. Further, the panel concluded

that the government had not shown a strong likelihood of

success on Plaintiffs’ claim that the Proclamation conflicts

with the Violence Against Women Act’s amendments to the

Immigration and Nationality Act (“INA”), the Affordable

Care Act, and the “public charge” provision of the INA.

The panel also considered 8 U.S.C. § 1182(f), the section

of the INA that provides that the President may, under certain

circumstances, “for such a period as he shall deem necessary,

suspend the entry of all aliens or any class of aliens . . . or

impose on the entry of aliens any restrictions he may deem to

be appropriate.” The panel acknowledged that the President

is owed broad deference with respect to this provision, but

nonetheless concluded at this juncture, for two reasons, that

the Plaintiffs are likely to succeed in refuting the

government’s contention that § 1182(f) legitimizes the

Proclamation: 1) the Proclamation’s perfunctory time

limitations do not comport with the textual limits of

§ 1182(f); and 2) § 1182(f) does not provide the President

with limitless power to deny visas to immigrants based on

purely long-term economic concerns.

Third, the panel concluded that a stay would substantially

injure Plaintiffs, as well other parties, including Twenty-one

states, the District of Columbia, and the City of New York, all

of which filed amici briefing describing the significant harm

DOE #1 V. TRUMP 5

they and other governmental entities will suffer if the

Proclamation goes into effect.

Fourth, the panel concluded that the public interest lies

with maintaining the status quo while the appeal is pending,

explaining that for countless decades, a stable immigration

system has provided for families to be united through a visa

system that did not require purchase of selected insurance

products. Given the irreparable harm to the Plaintiffs, the

lack of irreparable harm to the United States for maintaining

the status quo pending resolution of this appeal, and the

injury to other parties if the Proclamation is immediately

implemented, the panel concluded that the public interest

favors preserving the status quo.

Finally, the panel concluded that the district court did not

abuse its discretion in entering a nationwide injunction. The

panel noted that, subsequent to the preliminary injunction, the

district court certified two nationwide subclasses and that the

government had not yet sought to appeal that certification.

Because the class here is nationwide, and because a

nationwide injunction is necessary to provide the class

members with complete relief, the panel concluded that the

scope of the injunction is appropriate at this juncture,

regardless of whether or not it was when originally issued.

Thus, the panel concluded that, because the certified class is

nationwide and promotes uniformity in administering federal

immigration law, the district court did not abuse its discretion

as to the scope of the injunction.

Accordingly, the panel denied the motion and directed the

Clerk of Court to expedite the appeal.

6 DOE #1 V. TRUMP

Dissenting, Judge Bress wrote that the majority’s decision

is yet the latest example of this court allowing a universal

injunction of a clearly constitutional Executive Branch

immigration policy. First, as to success on the merits, Judge

Bress concluded that the majority erred in concluding that the

Proclamation is likely unconstitutional and that it conflicts

with the INA and other statutes. Second, Judge Bress

concluded that the government established irreparable harm

to the interests the Executive seeks to promote through the

Proclamation and to the core separation of powers principles

that make the Proclamation lawful, and established harm in

the form of costs while the injunction remains in effect.

Third, as to harm to the opposing party, Judge Bress wrote

plaintiffs had not established that their relatives are entitled

to visas but for the Proclamation. Fourth, Judge Bress

concluded that the public interest strongly supports staying

the injunction, stating that the majority added a new,

unauthorized stay factor: preservation of the status quo.

Judge Bress also wrote that, even if maintenance of the status

quo were among the factors that courts consider in this

context, the actual status quo is a legal environment in which

the Proclamation is authorized.

Finally, as to the scope of the injunction, Judge Bress

wrote that the majority’s reliance on the district court’s recent

class certification decision was a concession that the scope of

the injunction was invalid when issued. Judge Bress also

concluded that the problem with many nationwide

injunctions, as here, is that they are premised on class

certification orders that are themselves infirm. Further, Judge

Bress wrote that this circuit has co-opted the policy of

promoting uniform immigration laws as a justification for

courts issuing nationwide injunctions of Executive Branch

immigration policies.

DOE #1 V. TRUMP 7

COUNSEL

August E. Flentje (argued), Special Counsel; Courtney E.

Moran, Trial Attorney; Brian C. Ward, Senior Litigation

Counsel; William C. Peachey, Director; Joseph H. Hunt,

Assistant Attorney General; Office of Immigration Litigation,

United States Department of Justice, Washington, D.C.; for

Defendants-Appellants.

Naomi A. Igra (argued) and Benjamin Gillig, Sidley Austin

LLP, San Francisco, California; Esther Sung (argued) and

Karen C. Tumlin, Justice Action Center, Los Angeles,

California; Nadia H. Dahab and Stephen W. Manning,

Innovation Law Lab, Portland, Oregon; Jesse Bless,

American Immigration Lawyers Association, Washington,

D.C.; Kevin M. Fee and Scott D. Stein, Sidley Austin LLP,

Chicago, Illinois; for Plaintiffs-Appellees.

Michael W. Weaver, McDermott Will & Emery LLP,

Chicago, Illinois, for Amici Curiae 38 Health Policy Experts.

Xavier Becerra, Attorney General; Michael L. Newman,

Senior Assistant Attorney General; Kathleen Boergers and

Sarah E. Belton, Supervising Deputy Attorneys General;

Srividya Panchalam, Marissa Malouff, and Nimrod Pitsker

Elias, Deputy Attorneys General; Office of the General,

Oakland, California; Ellen F. Rosenblum, Attorney General;

Benjamin Gutman, Solicitor General; Michael C. Kron,

Special Counsel; Deanna J. Chang, Senior Assistant Attorney

General; Department of Justice, Portland, Oregon; Michael N.

Feuer, Corporation Counsel, Oakland, California; Dennis

Herrera, City Attorney, San Francisco, California; James R.

Williams, County Counsel, Santa Clara, California; Philip J.

Weiser, Attorney General, Colorado; Karl A. Racine,

8 DOE #1 V. TRUMP

Attorney General, District of Columbia; William Tong,

Attorney General, Connecticut; Kathleen Jennings, Attorney

General, Delaware; Clare E. Connors, Attorney General,

Hawai‘i; Kwame Raoul, Attorney General, and Mark A.

Flessner, Corporation Counsel, Chicago, Illinois; Aaron M.

Frey, Attorney General, Maine; Brian E. Frosh, Attorney

General, and Andre M. Davis, City Solicitor, Baltimore,

Maryland; Maura Healey, Attorney General, Massachusetts;

Dana Nessel, Attorney General, Michigan; Keith Ellison,

Attorney General, Minnesota; Aaron D. Ford, Attorney

General, Nevada; Gurbir S. Grewal, Attorney General, and

Angelo Auteri, Corporation Counsel, Union City, New

Jersey; Hector Balderas, Attorney General, New Mexico;

Letitia James, Attorney General, and James E. Johnson,

Corporation Cousnel, New York, New York; Joshua H. Stein,

Attorney General, and Nick Herman, Counsel, Carrboro,

North Carolina; Josh Shapiro, Attorney General, and Marcel

S. Pratt, City Solicitor, Philadelphia, Pennsylania; Peter F.

Neronha, Attorney General, Rhode Island; Thomas J.

Donovan Jr., Attorney General, Vermont; Mark R. Herring,

Attorney General, Virginia; Robert W. Ferguson, Attorney

General, and Peter S. Holmes, City Attorney, Seattle,

Washington; Josh Kaul, Attorney General, Wisconsin; for

Amici Curiae States and Cities.

Martha Jane Perkins and Sarah Grusin, National Health Law

Program, Carrboro, North Carolina, for Amici Curiae

National Health Law Program, American Public Health

Association, and 48 Other Organizations.

Laura McNally and Neil Nandi, Loeb & Loeb LLP, Chicago,

Illinois; Peter S. Margulies, Bristol, Rhode Island; Shoba

Sivaprasad Wadhia, University Park, Pennsylvania; for Amici

Curiae Immigration Law Professors.

DOE #1 V. TRUMP 9

Nicholas Levenhagen and Elizabeth Zirker, Disability Rights

California, San Diego, California, for Amici Curiae Disability

Rights California, Center for Public Representation,

Disability Rights Advocates, Disability Rights Education &

Defense Fund, Disability Rights Oregon, National Council on

Independent Living, National Disability Rights Network, and

The Arc.

Daniel B. Asimov, Arnold & Porter Kaye Scholer LLP, San

Francisco, California; John A. Freedman and Jeremy

Karpatkin, Arnold & Porter Kaye Scholer LLP, Washington,

D.C.; for Amici Curiae CASA, Center for Constitutional

Rights, Make the Road New York, and National Immigration

Law Center.

Sheryl Garko, Orrick Herrington & Sutcliffe LLP, Boston,

Massachusetts, for Amici Curiae American Medical

Association, Oregon Medical Association, and American

Academy of Pediatrics.

10 DOE #1 V. TRUMP

ORDER

THOMAS, Chief Judge:

In this case, we consider the government’s motion to stay

the district court’s preliminary injunction enjoining a

Presidential Proclamation restricting family-sponsored

immigrants from entering the United States without acquiring

specified health insurance. We deny the motion. We direct

the Clerk of Court to expedite the appeal.

I

The Immigration and Nationality Act (“INA”), Pub. L.

No. 82-414, 66 Stat. 163 (1952), allows noncitizens to apply

for an immigrant visa to permit them to permanently reside in

the United States. 8 U.S.C. §§ 1101(a)(15), 1181(a),

1182(a)(7), 1201(a). Before an individual may apply for an

immigrant visa, a prospective employer or a family member

who is a United States citizen or lawful permanent resident

must file a sponsorship petition on behalf of the individual.

Id. §§ 1151(a)–(b), 1153. The petition is submitted to and

approved by U.S. Citizenship and Immigration Services,

which forwards the approved petition to the National Visa

Center. See id. § 1201. The immigrant must then complete

visa processing and schedule an in-person interview before a

consular officer at a U.S. embassy or consulate. See id.

§ 1202(a), (e); 22 C.F.R. § 42.62. The consular officer then

makes a determination to issue or refuse the visa application.

See 8 U.S.C. § 1201(a)(1), (g); 22 C.F.R. §§ 42.71, 42.81(a).

If an immigrant falls into one of the ten categories

enumerated in 8 U.S.C. § 1182(a), they are deemed ineligible

for a visa and ineligible for admission into the United States.

DOE #1 V. TRUMP 11

Currently, insured status is not one of the criteria for

eligibility. See 8 U.S.C. § 1182(a).

On October 4, 2019, the President issued the

Proclamation in dispute, Proclamation No. 9945, entitled

Suspension of Entry of Immigrants Who Will Financially

Burden the United States Healthcare System, in Order to

Protect the Availability of Healthcare Benefits for Americans,

84 Fed. Reg. 53,991. The Proclamation identified the

perceived problem of uncompensated medical expenses in the

United States, stating, without citation to any source, “data

show that lawful immigrants are about three times more

likely than United States citizens to lack health insurance.”

To address this issue, the Proclamation barred, with some

exceptions, individuals seeking to enter the United States on

an immigrant visa from entering the United States unless they

could demonstrate that they will be covered by certain

approved health insurance within 30 days of entry or that they

have the resources to cover foreseeable healthcare costs. Id.

at 53,992.

The Proclamation identified a narrow definition of what

constitutes “an approved health insurance plan,” namely:

(i) an employer-sponsored plan, including a

retiree plan, association health plan, and

coverage provided by the Consolidated

Omnibus Budget Reconciliation Act of 1985;

(ii) an unsubsidized health plan offered in the

individual market within a State;

(iii) a short-term limited duration health

policy effective for a minimum of

12 DOE #1 V. TRUMP

364 days—or until the beginning of planned,

extended travel outside the United States;

(iv) a catastrophic plan;

(v) a family member’s plan;

(vi) a medical plan under chapter 55 of title

10, United States Code, including coverage

under the TRICARE program;

(vii) a visitor health insurance plan that

provides adequate coverage for medical care

for a minimum of 364 days—or until the

beginning of planned, extended travel outside

the United States;

(viii) a medical plan under the Medicare

program; or

(ix) any other health plan that provides

adequate coverage for medical care as

determined by the Secretary of Health and

Human Services or his designee.

Id.

By the terms of the Proclamation, Medicaid does not

constitute “approved health insurance” for individuals over

the age of 18. Id.

The President directed that the Proclamation become

effective at 12:01 a.m. eastern daylight time on November 3,

2019. On October 30, Plaintiffs filed this action. The

DOE #1 V. TRUMP 13

individual Plaintiffs are seven U.S. citizens who are

sponsoring family members for immigrant visas and whose

applicant family members have successfully completed the

traditional steps for obtaining an immigrant visa, but would

be barred from entering the United States under the

Proclamation. The organizational Plaintiff is the Latino

Action Network, an organization that provides programs

aimed at educating and empowering Latinos in Multnomah

County, Oregon. The Latino Action Network also provides

services to navigate the immigrant visa process.

On November 2, 2019, the district court issued a

temporary restraining order precluding the Proclamation from

taking effect. See Doe # 1 v. Trump, 414 F. Supp.3d 1307

(D. Or. 2019). On November 26, before the expiration of the

temporary restraining order, the district court issued a

nationwide preliminary injunction prohibiting

implementation of the Proclamation. Doe v. Trump, 418 F.

Supp. 3d 573, 604 (D. Or. 2019). In doing so, the district

court applied the familiar Winter factors, concluding that the

Plaintiffs had shown that (1) they were likely to succeed on

the merits; (2) they were likely to suffer irreparable harm in

the absence of preliminary relief; (3) the balance of equities

tipped in their favor; and (4) that a preliminary injunction was

in the public interest. Id. at 579 (citing Winter v. Nat. Res.

Defense Council, Inc., 555 U.S. 7, 22 (2008)). The United

States filed this emergency motion to stay the district court

order pending appeal.

While this stay motion was pending, on April 7, 2020, the

district court certified the following two subclasses:

The U.S. Petitioner Subclass: Individuals in

the United States who currently have or will

14 DOE #1 V. TRUMP

have an approved or pending petition to the

United States government to sponsor a

noncitizen family member for an immigrant

visa; and whose sponsored family member is

subject to the Proclamation and unable to

demonstrate to a consular officer's satisfaction

that he or she “will be covered by approved

health insurance” within 30 days after entry or

will be able “to pay for reasonably foreseeable

medical costs;” and

The Visa Applicant Subclass: Individuals

who are foreign nationals who (I) have

applied for or will soon apply to the United

States government for an immigrant visa;

(ii) are otherwise eligible to be granted the

visa; but (iii) are subject to the Proclamation

and unable to demonstrate to the satisfaction

of a consular officer that they “will be covered

by approved health insurance” within 30 days

after entry or will be able “to pay for

reasonably foreseeable medical costs.”

II

A request for a stay pending appeal is committed to the

exercise of judicial discretion. Virginian Ry. Co. v. United

States, 272 U.S. 658, 672 (1926). A party requesting a stay

pending appeal “bears the burden of showing that the

circumstances justify an exercise of that discretion.” Nken v.

Holder, 556 U.S. 418, 433–34 (2009). In considering

whether to exercise our discretion in granting the

Government’s motion to stay the preliminary injunction, we

apply the familiar standard set forth by the Supreme Court in

DOE #1 V. TRUMP 15

Nken, namely: (1) whether the Government has made a strong

showing of the likelihood of success on the merits;

(2) whether the appellants will be irreparably injured absent

a stay; (3) whether a stay will substantially injure other

parties; and (4) where the public interest lies. Id. at 426. “The

first two factors . . . are the most critical.” Id. at 434. We

consider the last two factors if the first two factors are

satisfied. Id. at 435. We review the scope of the district

court’s preliminary injunction for abuse of discretion.

California v. Azar, 911 F.3d 558, 568 (9th Cir. 2018), cert.

denied sub nom. Little Sisters of the Poor Jeanne Jugan

Residence v. California, 139 S. Ct. 2716 (2019).

III

A

Nken instructed “that if the petition has not made a certain

threshold showing regarding irreparable harm . . . then a stay

may not issue, regardless of the petitioner’s proof regarding

the other stay factors.” Leiva-Perez v. Holder, 640 F.3d 962,

965 (9th Cir. 2011) (per curium) (citing Nken, 556 U.S.

at 433–34). We therefore begin our Nken analysis with

consideration of irreparable harm. Cf. Al Otro Lado v. Wolf,

952 F.3d 999, 1007 (9th Cir. 2020) (listing the Nken factors

and explaining, “We first consider the government’s showing

on irreparable harm, then discuss the likelihood of success on

the merits under the sliding scale approach”).

The government has failed to meet its burden of showing

irreparable harm. In the context of a stay request, “simply

showing some possibility of irreparable injury” is

insufficient. Nken, 556 U.S. at 434 (citation and internal

quotation marks omitted). Rather, at this juncture, the

16 DOE #1 V. TRUMP

government has the burden of showing that irreparable injury

is likely to occur during the period before the appeal is

decided. Leiva-Perez, 640 F.3d at 968. The government did

not satisfy its burden.

The government first argues that it will suffer irreparable

harm because the preliminary injunction prevents “the

President from taking action effectuating an Act of

Congress.” But the question of whether the Proclamation

conflicts with congressionally set qualifications for

immigrant visas or exceeds the President’s authority to

change these qualifications is at the core of this dispute, to be

resolved at the merits stage of this case. Thus, the harm of

such a perceived institutional injury is not “irreparable,”

because the government “may yet pursue and vindicate its

interests in the full course of this litigation.” Washington v.

Trump, 847 F.3d 1151, 1168 (9th Cir. 2017) (per curium),

cert. denied sub nom. Golden v. Washington, 138 S. Ct. 448

(2017). Indeed, if we were to adopt the government’s

assertion that the irreparable harm standard is satisfied by the

fact of executive action alone, no act of the executive branch

asserted to be inconsistent with a legislative enactment could

be the subject of a preliminary injunction. That cannot be so.

The government next argues that it will be irreparably

harmed during the pendency of the appeal because of the

alleged substantial cost to healthcare providers and taxpayers

by uninsured immigrants. For support, the government

simply cites to the statement in the Proclamation that recent

immigrants are three times more likely than citizens to lack

health insurance. There is no citation in the Proclamation for

this statistic, nor is one to be found anywhere in the record.

Nor could the government provide any source for this

DOE #1 V. TRUMP 17

assertion in briefing or at oral argument. And the

Proclamation contains no further cost quantification.

By contrast, the Plaintiffs placed into the record evidence

that uninsured immigrants represent only 0.3% of American

adults and only 2.9% of uninsured adults. The record

evidence also shows that uninsured immigrants use less than

0.06% of total American medical resources and only 0.08%

of emergency service expenditures. These statistics include

illegal as well as legal immigrants, so the numbers pertinent

here may be considerably lower. The record further indicates

that immigrants are more likely to represent “favorable

insurance risk[s]” in Affordable Care Act (ACA)

marketplaces because they tend to be relatively healthier than

the normal insured population and use fewer healthcare goods

and services. For instance, in California, immigrants who are

insured through an ACA-compliant plan (which, if

subsidized, are not permitted under the Proclamation) have

10% lower medical claims than citizen enrollees in the same

plans. As a result of excluding low-risk consumers, the

overall health of the risk pool will decrease, resulting in

increased premiums for all consumers using state

marketplaces.

The government claims that we are precluded from

reviewing the Proclamation’s conclusory findings and must

accept them as true. This assertion runs afoul of Nken, which

places the burden on the government, and instructs us only to

exercise our discretion to enter a stay when irreparable harm

is probable, not merely possible. 556 U.S. at 434. The

government cannot meet this burden by submitting

conclusory factual assertions and speculative arguments that

are unsupported in the record. See Azar, 911 F.3d at 581. In

this respect, this Proclamation’s findings stand in stark

18 DOE #1 V. TRUMP

contrast to the proclamation’s findings in Trump v. Hawaii,

138 S. Ct. 2392 (2018). That case involved a proclamation

that set forth “extensive findings,” which the President found

after ordering the relevant agencies to “conduct a

comprehensive evaluation” of the countries affected by the

proclamation, and the proclamation then tailored its findings

to the agencies’ recommendations. See id. at 2408. Thus, in

assessing whether the government has met its burden, we

must examine and review the entire record, not simply rely on

one unsupported conclusory statement. See Washington,

847 F.3d at 1162–63.

Even if we credit the Proclamation’s assertions, the

government has not demonstrated that the healthcare system

will be irreparably burdened while this appeal is pending.

The record evidence shows that many of the immigrants

affected by the Proclamation could obtain some form of

insurance that would reduce their already minimal

contribution to healthcare costs, but these immigrants are

nonetheless inadmissible under the Proclamation because

they cannot obtain an “approved” health insurance plan or

cannot obtain a plan within the 30-day deadline. In short, the

record evidence shows that the impact of uninsured

immigrants on uncompensated healthcare costs is minimal,

and that many of the affected immigrants could obtain health

insurance if permitted to look beyond the plans and 30-day

limitation in the Proclamation. The government has

submitted no evidence disputing these points.

Further, the harm asserted by the government is purely

monetary, and “‘monetary injury is not normally considered

irreparable.’” hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d

985, 993 (9th Cir. 2019) (quoting Los Angeles Mem’l

Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197,

DOE #1 V. TRUMP 19

1202 (9th Cir. 1980)). In addition, monetary injury to third

parties, such as health care providers, or to the economy in

general provides an even weaker justification for a finding of

“irreparable harm.” After all, the Nken irreparable harm

standard is “whether the applicant will be irreparably injured

absent a stay.” 556 U.S. at 426 (emphasis added).

By contrast, the district court concluded that the evidence

demonstrated that Plaintiffs would suffer irreparable harm

absent preliminary injunctive relief and that the government

was unlikely to succeed in showing otherwise. Doe, 418 F.

Supp. 3d at 599. The Plaintiffs submitted evidence that all

seven individual Plaintiffs are either unable to afford an

“approved” plan, unable to add the immigrant family member

to an existing employer-sponsored plan, unable to acquire an

approved plan within the 30-day deadline, or lack the

resources to demonstrate they could independently pay for

foreseeable medical costs. See id. at 584–86.

The district court concluded that the Proclamation likely

would negatively affect approximately 60% of all immigrant

visa applicants. Id. at 597. Plaintiffs aver, citing data from

the United States Census Bureau, that approximately 375,000

immigrants each year—primarily those seeking to enter the

United States on family-sponsored petitions—would be

affected, and potentially precluded from obtaining an

immigrant visa, by the Proclamation.

Based on the evidence in the record, the district court

found that the approved insurance plans delineated in the

Proclamation were “legally or practically unavailable to

intending, or prospective, immigrants.” Id. at 583. The

district court found that employer-based plans often had a

waiting period that exceeded the Proclamation’s 30-day

20 DOE #1 V. TRUMP

deadline and highlighted the fact that the prohibition against

obtaining subsidized insurance under the Affordable Care Act

rendered that market, for the most part, inaccessible to

arriving immigrants. Id. It also highlighted the fact that

Short Term Limited Duration Insurance plans, which were

among the Proclamation’s “approved” plans, are banned in

California, and that Oregon’s contract term requirements

make such plans ineligible under the Proclamation there. Id.

The district court underscored that reliance on Medicaid for

any immigrant over the age of 18 is prohibited by the

Proclamation.

As to the other “approved” plans, the district court

explained that:

Family-member plans are only available to

applicants younger than 27 years old.

Visitor’s insurance plans are designed for

short-term visits, have caps on individual

coverage and lifetime benefits, and often

exclude preexisting conditions, mental health

conditions, and maternity care. Such plans

often result in significant uncompensated

care. People who receive insurance through

state Medicaid programs may not be able to

add their family members to their plan.

Catastrophic plans are only available to

people who are already legally present. Even

then, only people under 30 (or who obtain a

special hardship exemption) are eligible to

enroll. TRICARE is available only to

members of the United States military and

their close relatives. Medicare is perhaps the

least feasible option—only intending [that]

DOE #1 V. TRUMP 21

immigrants older than 65 who have already

been living continuously in the United States

for five years may enroll.

Doe, 418 F. Supp. 3d at 583–84.

The district court concluded, based on the record

evidence, that the Proclamation would result in prolonged

separation from family members, a factor that we have held

constitutes sufficient irreparable harm. Hawai’i v. Trump,

878 F.3d 662, 699 (9th Cir. 2017), rev’d on other grounds

and remanded, 138 S. Ct. 2392 (2018); see also Washington,

847 F.3d at 1168–69. For example, the district court found

that one of the Plaintiffs risks having his wife’s I-601A

waiver automatically revoked if she is denied a visa at her

interview. See Doe, 418 F. Supp. 3d at 598. The district

court further found that Plaintiffs who have already secured

I-601A waivers through their family member sponsors had a

high risk of being forced to leave the United States for an

indefinite period of time. Id. Based on the record, the district

court determined that the Plaintiffs were unlikely to acquire

one of the “approved health insurance” plans set forth in the

Proclamation, but were otherwise likely qualified for entry

under § 1182(a). Id. In sum, without reciting all of the

record evidence, the record amply supported the district

court’s conclusion that the Plaintiffs would suffer irreparable

harm.

Ultimately, the government has failed to sustain its

burden of establishing that it would suffer irreparable harm

absent a stay of the preliminary injunction pending a hearing

by a merits panel. The record supports the district court’s

conclusion that the Plaintiffs would suffer irreparable harm

absent a preliminary injunction.

22 DOE #1 V. TRUMP

B

Our Nken analysis could conclude here, given that if a

stay applicant cannot show irreparable harm, “a stay may not

issue, regardless of the petitioner’s proof regarding the other

stay factors.” Leiva-Perez, 640 F.3d at 965. However, the

context of this case suggests that we should proceed with

examining the remaining Nken factors.

The second most important Nken factor is whether the

applicant has made a strong showing of the likelihood of

success on the merits. See Nken, 556 U.S. at 426. As a

motions panel, we must take care not to prejudge the merits

of the appeal, but rather to assess the posture of the case in

the context of the necessity of a stay pending presentation to

a merits panel. See Washington, 847 F.3d at 1168. Thus, we

will not address the merits in detail, but only as necessary to

apply the Nken factors. Here, the government has not met the

high standard of showing a strong likelihood of success on

the merits.

1

The government has not shown that it has a strong

likelihood of success on the Plaintiffs’ claim that the

Proclamation conflicts with the Violence Against Women

Act’s (“VAWA”) amendments to the INA. See 8 U.S.C.

§ 1182(a)(4)(E). Indeed, on this claim the government has

made no showing at all.

The VAWA amendments exempted from the public

charge exclusion certain immigrant relatives of victims

of violent crimes, such as felony assault, sexual assault,

incest, kidnapping, or human trafficking. 8 U.S.C.

DOE #1 V. TRUMP 23

§ 1101(a)(15)(U)(iii). These amendments also exempted

victims of battering and extreme cruelty. 8 U.S.C.

§ 1154(a)(1)(A)(iii)–(vi). Congress expressly provided that

these immigrants—including the spouses, children, and

parents of violent crime victims—were categorically exempt

from the financial burden or “public charge” provisions of the

INA. Id.

The Proclamation makes no such exemption. Rather, it

effectively prohibits family members of violent crime victims

from obtaining visas and joining their families in the United

States by declaring them to be financial burdens and

ineligible, directly contradicting VAWA. This preclusion

contravenes the well-settled principle that the President’s

powers are executive, not legislative, in nature. “[T]he

President’s power to see that the laws are faithfully executed

refutes the idea that he is to be a lawmaker.” Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). The

President’s authority to act “must stem either from an act of

Congress or from the Constitution itself.” Id. at 585. Here,

Congress has enacted the VAWA amendments specifically to

enable the subject immigrants to qualify for admission and

visas, see 8 U.S.C. § 1154(a)(1)(A)(iii)–(vi), and “[t]here is

no provision in the Constitution that authorizes the President

to enact, to amend, or to repeal statutes.” Clinton v. City of

New York, 524 U.S. 417, 438 (1998).

The government does not respond to the merits of this

challenge; it only suggests that the statutory conflict does not

affect many people. Of course, this consideration is

irrelevant to the determination of whether the government has

demonstrated a strong likelihood of success of prevailing on

the VAWA issue. By contrast, Plaintiffs point out that

immigrant family members of victims of violent crimes

24 DOE #1 V. TRUMP

comprise at least 20 categories of noncitizens seeking to enter

the United States with an immigrant visa. See 22 C.F.R.

§ 42.11.

At this stage, the government has failed to make a strong

showing that it is likely to prevail on Plaintiffs’ claim that the

Proclamation conflicts with the Violence Against Women

Act.

2

The government has also not sustained its burden of

showing that it has a strong likelihood of success of

prevailing on Plaintiffs’ claim that the Proclamation violates

the ACA. See 42 U.S.C. §§ 18021 to 18024, 18031; see also

26 U.S.C. § 36B. The government has not submitted any

evidence to indicate that it is likely to succeed on this claim.

In enacting the ACA, Congress authorized the creation of

state-based markets that present consumers with multiple

insurance coverage choices so that consumers can compare

and purchase plans in an effort to “increase the number of

Americans covered by health insurance and decrease the cost

of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S.

Ct. 2566, 2580 (2012). To purchase insurance in a state’s

marketplace, an individual must prove that they reside in the

United States or a territory thereof and that they are “lawfully

present.” 42 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F.R.

§ 155.305(a)(1)–(3). To incentivize the purchase of insurance

plans through ACA marketplaces, Congress provided

premium tax credits to offset the costs of purchasing an

insurance plan and expressly extended the availability of

those credits to any taxpayer who “is an alien lawfully present

in the United States.” 26 U.S.C. § 36B(c)(1)(B)(ii).

DOE #1 V. TRUMP 25

Despite Congress’s clear intent to extend these tax credits

to legal immigrants, the Proclamation explicitly excludes

such “subsidized plans” from the list of approved health

insurance plans. As a result, an immigrant attempting to

legally enter the United States will not have access to ACA

tax credits as Congress intended. Compare 84 Fed. Reg. at

53,992 to 26 U.S.C. § 36B(c)(1)(B)(ii). And, unless an

immigrant succeeds in searching for, finding, and paying for

eligible insurance—which is unlikely—they will not be able

to legally immigrate, even if otherwise eligible under the

criteria Congress established.

Additionally, the government’s contention that an

immigrant may satisfy the Proclamation by purchasing a plan

that does not include tax credits (i.e., an “unsubsidized” plan)

under the ACA is, in practice, nearly impossible, even though

such plans are technically “approved” under the

Proclamation. See 84 Fed. Reg. at 53,992. An immigrant

may only participate in the ACA marketplace after they have

established both their residency and lawful presence, but the

immigrant cannot reside in and be legally present in the

United States under the Proclamation without first

purchasing “approved” health insurance. See 42 U.S.C.

§ 18032(f)(1)(A)(ii); 45 C.F.R. § 155.305(a)(1)–(3). The

immigrant is consequently left in a Catch-22: they cannot

obtain an “approved” unsubsidized insurance plan unless they

have been legally admitted, but they cannot be legally

admitted unless they have obtained an “approved” insurance

plan. Thus, the Proclamation bars immigrants from accessing

subsidized insurance plans despite Congress’s express intent

to extend those plans to legal immigrants, 26 U.S.C.

§ 36B(c)(1)(B)(ii), and it essentially prohibits immigrants

from obtaining an unsubsidized plan despite such plans being

26 DOE #1 V. TRUMP

“approved” under the Proclamation. The government has not

seriously contested this claim.

In sum, given that the evidence in the record supports a

conclusion that the Proclamation prevents otherwise eligible

immigrants from accessing either subsidized or unsubsidized

health insurance plans as Congress intended and instead

requires them to obtain—if they can—different, lower quality

insurance to be eligible for a visa, we conclude that the

government has not shown that it is likely to succeed on this

claim.

3

The government has also not sustained its burden of

showing that it has a strong likelihood of success of

prevailing on Plaintiffs’ claims that the Proclamation violates

the INA. Although we leave a complete analysis of these

claims to the merits panel, several of these claims are worthy

of discussion at this stage, in light of the serious questions on

the merits Plaintiffs raise. See All. for the Wild Rockies v.

Cottrell, 632 F.3d 1127, 1137 (9th Cir. 2011).

First, the Proclamation is connected in its avowed purpose

to the INA’s “public charge” provision. That provision states

that “[a]ny alien who, in the opinion of the consular officer at

the time of application for a visa, or in the opinion of the

Attorney General at the time of application for admission or

adjustment of status, is likely at any time to become a public

charge is inadmissible.” 8 U.S.C. § 1182(a)(4)(B)(i). The

statute lists various factors that the consular office can

consider. Health insurance is not among them.

DOE #1 V. TRUMP 27

More importantly, the statute requires that all of the

specified factors should be considered in determining whether

an applicant should be deemed a financial burden and

consequently inadmissible. 8 U.S.C. § 1182(a)(4)(B). The

Proclamation eviscerates the statutory scheme by making the

acquisition of designated forms of health insurance the sole

consideration of whether an applicant should be excluded

from consideration for a family visa. See 84 Fed. Reg. at

53,992. Any argument contending that the Proclamation

complements the public charge statutory scheme is therefore

incorrect.

Regarding § 1182(a)(4)(B), we have recognized that this

provision establishes “factors [that] are to be considered ‘at

a minimum,’” but “[o]ther factors may be considered as well,

giving officials considerable discretion in their decisions.”

City & Cty. of San Francisco v. USCIS, 944 F.3d 773, 972

(9th Cir. 2019). The Proclamation does not permit any

exercise of official discretion, as the enumerated

§ 1182(a)(4)(B) factors do, but instead imposes an absolute

bar on the entry of uninsured immigrants. For instance, one

of the individual Plaintiffs has submitted evidence that he

could add his wife to his employer’s healthcare plan once she

obtained a social security card, but social security cards are

not mailed quickly enough to meet the 30-day deadline

mandated by the Proclamation. Even in this situation, the

consular officer has no discretion to consider that the

Plaintiff’s wife can obtain an approved health insurance plan

and that this factor would weigh against finding that she is

likely to become a public charge under § 1182(a)(4)(B).

Instead the officer must find that she is inadmissible because

she cannot obtain this insurance within 30 days. Without the

Proclamation, the officer would have the discretion to

consider her admissible, as § 1182(a)(4)(B) intended. In sum,

28 DOE #1 V. TRUMP

the Proclamation’s health insurance requirement supplants

the discretion afforded to consular officers in

§ 1182(a)(4)(B).

Second, the Plaintiffs raise serious questions related to

§ 1182(f) of the INA. This section of the INA provides that,

when “the President finds that the entry of any aliens or any

class of aliens into the United States would be detrimental to

the interests of the United States,” then he may, “for such a

period as he shall deem necessary, suspend the entry of all

aliens or any class of aliens . . . or impose on the entry of

aliens any restrictions he may deem to be appropriate.”

8 U.S.C. § 1182(f). Section 1182(f) “exudes deference to the

President.” Hawaii, 138 S. Ct. at 2408. We acknowledge

this broad deference, but nonetheless conclude at this

juncture, for two reasons, that the Plaintiffs are likely to

succeed in refuting the government’s contention that

§ 1182(f) legitimizes the Proclamation: first, the

Proclamation’s perfunctory time limitations do not comport

with the textual limits of § 1182(f); and second, § 1182(f)

does not provide the President with limitless power to deny

visas to immigrants based on purely long-term economic

concerns.

We first consider whether the Proclamation comports

with the temporal limitations of § 1182(f) established by the

statute itself: that the President has the power to “suspend”

the entrance of aliens “for such period as he shall deem

necessary.”

“[A]s with any statute, ‘we look first to its language,

giving the words used their ordinary meaning.’” Roberts v.

Sea-Land Servs., Inc., 566 U.S. 93, 100 (2012) (quoting

Ingalls Shipbuilding Inc. v. Dir., Office of Workers’ Comp.

DOE #1 V. TRUMP 29

Progs., 519 U.S. 248 (1997)). Ordinarily, to “suspend”

means to “cause to stop temporarily,” Suspend, MERRIAM-

WEBSTER DICTIONARY (2019), or “connotes a deferral till

later,” Hawaii, 138 S. Ct. at 2409 (citation omitted). The

Proclamation summarily states that the entrance of “aliens

who will burden the healthcare system is hereby suspended,”

but the mere use of the word “suspend” does not remedy the

fact that the Proclamation omits any indication that the health

insurance requirement is temporary. See 84 Fed. Reg.

at 53,992. Instead, the Proclamation ties the putative

suspension to the problem of uncompensated healthcare costs,

a speculative argument given that this problem has no

apparent resolution under the current healthcare system.

By the Proclamation’s own terms, it does not have an

endpoint. Rather, it only requires periodic status reports and

merely provides that if the Secretary of State, after consulting

other officials, “determines that circumstances no longer

warrant the continued effectiveness of the suspension . . . the

Secretary shall immediately advise the President.” See

84 Fed. Reg. at 53,993. There is no requirement that the

President act on the advice. Although § 1182(f) does not

require an explicit duration, see Hawaii, 138 S. Ct. at 2410,

the lack of an explicit time limitation is problematic in light

of the absence of any language that suggests even an implicit

limitation, such as a limit measured by the occurrence of

some future event or condition. The Proclamation here is

therefore distinguishable from the Proclamation at issue in

Hawaii, which “ma[de] clear that its ‘conditional restrictions’

will remain in force only so long as necessary to ‘address’ the

identified ‘inadequacies and risks’ within the covered

nations.” Id. To achieve its goal, the Hawaii Proclamation

established “an ongoing process to engage covered nations

and assess every 180 days whether the entry restrictions

30 DOE #1 V. TRUMP

should be modified or terminated,” and the Proclamation

stated that it aimed to “‘relax[ ] or remove[ ]’ the entry

restrictions ‘as soon as possible.’” Id.

By contrast, the Proclamation here includes no suggestion

that the health insurance requirement is temporally limited by

anything, including the overall reduction in uncompensated

healthcare costs. Although the Secretary of State will review

the effectiveness of the program in 180 days and, from then

on, on a yearly basis, see 84 Fed. Reg. at 53,993, there is no

language that suggests that the requirement will be removed

“as soon as possible,” or when any specified circumstance

changes. Cf. Hawaii, 138 S. Ct. at 2410. Furthermore, unlike

the Proclamation in Hawaii, which was promulgated after

DHS and other agencies “conducted a comprehensive

evaluation of every single country’s compliance with the

information and risk assessment baseline,” id. at 2408, the

Proclamation here was not issued following any sort of

comprehensive agency review supported by data-driven

analysis. Indeed, the government has submitted no evidence

to suggest that the health insurance requirement will reduce

uncompensated healthcare costs in such a way as to render

the limitation feasibly temporary.

For example, the Proclamation states that uncompensated

healthcare costs have “exceeded $35 billion in each of the last

10 years,” and suggests that this figure could be lowered by

refusing to admit immigrants who lack approved health

insurance. See 84 Fed. Reg. at 53,991. However, data in the

record indicates that uncompensated health care costs have

DOE #1 V. TRUMP 31

remained around $35 billion since at least 2001.1 As stated

above, we credit the Plaintiffs’ evidence that uninsured

immigrants contribute minimally to this amount. These facts

call into question whether the Proclamation is consistent with

the direction to “suspend” immigration for so long as

necessary to effectuate the government’s goal of decreasing

uncompensated healthcare costs.

The Proclamation’s longevity is contingent upon the

diminishment of uncompensated healthcare costs—costs that

have remained stable for at least two decades—which it

purports to reduce by restricting entry of a class of

immigrants that has been shown not to significantly affect

that figure, and whose dollar impact on uncompensated costs

will likely remain static, whatever happens to uncompensated

costs in general. Consequently, the likely ineffectiveness of

the health insurance requirement suggests that

uncompensated care costs will remain high, and the perceived

“necessity” of the Proclamation could therefore continue in

perpetuity. Cf. Hawaii, 138 S. Ct. at 2410 (“[W]hen a

president suspends entry in response to a diplomatic dispute

or policy concern, he may link the duration of those

restrictions, implicitly or explicitly, to the resolution of the

triggering condition.”). In short, the Proclamation’s failure

to explicitly or implicitly establish any time constraints on the

health insurance prohibition raises serious questions as to

1

See INSTITUTE OF MEDICINE (US) COMMITTEE ON THE

CONSEQUENCES OF UNINSURANCE, HIDDEN COSTS, VALUES LOST 47

(2003) (available at https://www.ncbi.nlm.nih.gov/ books/NBK221662/);

see also American Hospital Association, Uncompensated Hospital Care

Cost Fact Sheet 3 (January 2019) (https://www.aha.org/system/files/2019-

01/uncompensated-care-fact-sheet-jan-2019.pdf) (establishing that

uncompensated healthcare costs totaled approximately $21.5 billion in

2001, which is roughly $32 billion when adjusted for inflation).

32 DOE #1 V. TRUMP

whether the Proclamation is a “suspension” according to the

plain meaning of the term in § 1182(f).

We turn now to Plaintiffs’ second challenge to the

government’s arguments concerning § 1182(f)—namely, that

the President exceeded even the broad authority prescribed to

him in § 1182(f) when he issued the Proclamation. Based on

the evidence in the record and the stated objectives of the

Proclamation, we conclude that the government is not likely

to succeed on this issue either.

We acknowledge that “[b]y its plain language, § 1182(f)

grants the President broad discretion to suspend the entry of

aliens into the United States.” Hawaii, 138 S. Ct. at 2408.

Nonetheless, the substantive scope of this power is not

limitless. The “sole prerequisite set forth in § 1182(f) is that

the President ‘find[ ]’ that the entry of the covered aliens

‘would be detrimental to the interests of the United States.’”

Id. The President satisfied this prerequisite in Hawaii

because “the entry policy [in the Proclamation was] plausibly

related to the Government’s stated objective to protect the

country and improve vetting processes.” Id. at 2420. Thus,

there, the President acted within the traditional spheres

authorized by § 1182(f): in the context of international affairs

and national security, and working in tandem with the

congressional goals of vetting individuals from countries

identified as threats through an agency review. See id.

at 2409, 2412.

By contrast, the Proclamation here deals with a purely

domestic economic problem: uncompensated healthcare costs

in the United States. See 84 Fed. Reg. at 53,991. We reject

the government’s argument that the Proclamation implicates

the President’s foreign affairs powers simply because the

DOE #1 V. TRUMP 33

Proclamation affects immigrants. Cf. E. Bay Sanctuary

Covenant v. Trump, 950 F.3d 1242, 1279 (9th Cir. 2020)

(“Broadly citing to the Rule’s immigration context is

insufficient to invoke the foreign-affairs exception” so that

the President does not have to follow the traditional pathways

of public rulemaking.). Therefore, while the “President

[may] adopt[ ] ‘a preventive measure . . . in the context of

international affairs and national security,’” and he is then

“‘not required to conclusively link all of the pieces in the

puzzle before [courts] grant weight to [his] empirical

conclusions,’” Hawaii, 138 S. Ct. at 2409 (quoting Holder v.

Humanitarian Law Project, 561 U.S. 1, 35 (2010)), his power

is more circumscribed when he addresses a purely domestic

economic issue, see E. Bay Sanctuary Covenant, 950 F.3d

at 1279.

Indeed, in domestic economic matters, the national

security and foreign affairs justifications for policy

implementations disappear, and the normal policy-making

channels remain the default rules of the game. For instance,

the “public charge rule” discussed above attempts to resolve

similar concerns related to the perceived financial burden of

immigrants without resorting to § 1182(f) for justification.

See City & Cty. of S.F., 944 F.3d at 779–80 (explaining that

the proposed rule interpreting this provision of the INA went

through the typical notice-and-comment period under the

Administrative Procedure Act). In contrast, the Proclamation

here was issued with virtually no factual findings, minimal

reasoning, and an extremely limited window for public

comment, raising serious questions as to whether the

President has effectively rewritten provisions of the INA. We

therefore find it unlikely that the government will succeed in

its broad reliance on § 1182(f).

34 DOE #1 V. TRUMP

Again, we do not prejudge the resolution of the merits of

this issue because the question is whether the government has

shown a strong likelihood of success on the merits. The

Plaintiffs have raised sufficiently serious questions on the

merits of their INA claim, including on the government’s

defenses, that we cannot conclude that the government has

sustained its high burden of showing a strong likelihood of

success of the merits.

4

The district court issued a lengthy, thoughtful, and

forceful opinion focusing on whether the Proclamation

violated the nondelegation doctrine. In deference to the

merits panel, we decline to address the probable likelihood of

success for either party on this claim. See Washington,

847 F.3d at 1168.

In addition, the Plaintiffs have raised a number of issues

not addressed by the district court, such as the violation of the

Administrative Procedure Act, which also may present

serious questions on the merits.

C

The third Nken factor is whether a stay will substantially

injure other parties, on which we touch only briefly given the

government’s failure to satisfy the two most important Nken

factors. See Nken, 556 U.S. at 435. We have already

explained that the plaintiffs have established irreparable

injury. See Part III.A, supra. In addition, the record

demonstrates the significant effect of the Proclamation on

other parties. Twenty-one states, the District of Columbia,

and the City of New York filed amici briefing describing the

DOE #1 V. TRUMP 35

significant harm they and other governmental entities will

suffer if the Proclamation is allowed to go into effect. These

amici explain that immigrants “are vital to the economic,

civic, and social fabric of our states and city.” Indeed, the

evidence in the record indicates that in 2014, immigrant-led

households paid more than $26 billion in state and local taxes

in California,2 and $736 million in state and local taxes in

Oregon.3 Plaintiffs and amici provided further evidence

credited by the district court to satisfy this factor. See Doe,

418 F. Supp. 3d at 599–600 (crediting evidence that the

implementation of the Proclamation will interrupt family

reunification, detrimentally affect job sectors that

disproportionately employ immigrants, and increase the

number of underinsured immigrants who will be prohibited

from purchasing subsidized ACA insurance plans). The

government does not seriously contest this evidence. This

factor favors the Plaintiffs.

D

The final Nken factor is where the public interest lies.

“The purpose of a preliminary injunction is always to prevent

irreparable injury so as to preserve the court’s ability to

render a meaningful decision on the merits. It often happens

that this purpose is furthered by the status quo, but not

always.” Golden Gate Restaurant Ass’n v. City & Cty. of San

Francisco, 512 F.3d 1112, 1116 (9th Cir. 2008) (quoting

2

Am. Immigration Council, Immigrants in California 4 (2017)

(https://tinyurl.com/CAP-Immigrants-in-CA).

3

Am. Immigration Council, Immigrants in Oregon (2017)

(https://www.americanimmigrationcouncil.org/research/immigrants-

oregon).

36 DOE #1 V. TRUMP

Canal Authority of Florida v. Callaway, 489 F.2d 567, 576

(5th Cir. 1974)). In this case, the public interest lies with

maintaining the status quo while the appeal is pending. For

countless decades, a stable immigration system has provided

for families to be united through a visa system that did not

require purchase of selected insurance products for entry into

the United States.

The government contends this factor weighs in its favor

because the Proclamation as implemented constitutes the

status quo, which would be upended if a stay is not issued.

But it was the Proclamation that altered the status quo for the

Plaintiffs, whose family members had qualified for entry

under established immigration policy, but are now

inadmissible under the Proclamation. The “purpose of a

preliminary injunction is merely to preserve the relative

positions of the parties until a trial on the merits can be held.”

Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). This

observation has even more force here, where we are

considering only a stay pending appeal of a preliminary

injunction. In the government’s re-imagining of the status

quo in this context, this factor would always tip in the

government’s favor, effectively rendering the Court

powerless to exercise its discretion on this factor in such

instances.

Given the irreparable harm to the Plaintiffs, the lack of

irreparable harm to the United States for maintaining the

status quo pending resolution of this appeal, and the injury to

other parties if the Proclamation is immediately implemented,

the public interest favors preserving the status quo. This

factor falls to the Plaintiffs.

DOE #1 V. TRUMP 37

IV

We finally consider the scope of the district court’s

preliminary injunction. In this case, the district court

determined that a nationwide injunction was appropriate.

Based on evidence in the record, the district court concluded

that the Proclamation would cause significant harm to

21 states, the District of Columbia, and New York City if

allowed to go into effect there. Accordingly, the court

enjoined the Proclamation across the country to preserve

uniformity in immigration policies. Doe, 418 F. Supp. 3d at

603. Subsequently, the district court certified the two

nationwide subclasses noted above: the United States

Petitioner subclass and the Visa Applicant subclass. The

government has not yet sought to appeal that certification.

In the present procedural posture—a request for a stay

pending the appeal of a preliminary injunction—a

provisionally certified nationwide class is sufficient

justification for a nationwide injunction.4 See Al Otro Lado,

952 F.3d at 1004 n.4. Because the class here is nationwide,

and because a nationwide injunction is necessary to provide

the class members with complete relief, we conclude that the

scope of the injunction is appropriate at this juncture,

regardless of whether or not it was when originally issued.

“The scope of an injunction is ‘dependent as much on the

equities of a given case as the substance of the legal issues it

presents,’ and courts must tailor the scope ‘to meet the

exigencies of the particular case.’” Azar, 911 F.3d at 584

(quoting Trump v. Int’l Refugee Assistance Project, 137 S. Ct.

4

Should the government ultimately prevail in reversing the class

certification, then the scope of the injunction should be revisited.

38 DOE #1 V. TRUMP

2080, 2087 (2017)). Here, the balance of the equities tips in

favor of protecting the certified class: the government has not

shown that it will be irreparably injured absent enforcement

of the Proclamation, while the Plaintiffs have shown that the

immediate implementation of the Proclamation will affect the

long-standing practice of how immigration visas are

processed and will prevent class members from reuniting with

their families. Plaintiffs have raised serious concerns that

class members will be seriously injured if the Proclamation

is implemented immediately, and thus the exigencies of this

case indicate that an injunction protecting the certified class

is “not more burdensome than necessary” to provide relief

while the merits of this case are pending. See id. (citing

Califano v. Yamasaki, 442 U.S. 682, 702 (1979)).

In addition, “there is no bar against class-wide, and

nationwide relief in federal district or circuit court when it is

appropriate,” Bresgal v. Brock, 843 F.2d 1163, 1170 (9th Cir.

1987), and here the class-wide, nationwide relief is necessary

to afford the class members the relief to which they are

entitled. Many of the typical circumstances that counsel

against the nationwide scope of an injunction are absent from

this case. No litigation challenging this Proclamation is

pending elsewhere, alleviating concerns occasionally

associated with nationwide injunctions that such injunctions

deprive other courts from offering diverse perspectives on the

legal issues while similar litigation is ongoing in multiple

forums. See Azar, 911 F.3d at 583. Moreover, the district

court here has not stayed the preparation of this case for trial

pending the appeal of the nationwide injunction, removing a

consideration that “magnifies” the concerns associated with

nationwide injunctions. See id. The nationwide scope of the

injunction is also based on the certified subclasses, which

eliminates some concern that a nationwide injunction is

DOE #1 V. TRUMP 39

overly burdensome. Cf. id. at 582–83 (“[I]njunctive relief

generally should be limited to apply only to named plaintiffs

were there is no class certification”) (quoting Easyriders

Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1501 (9th

Cir. 1996)).

Further, “[t]he INA was designed to implement a uniform

federal policy,” Kahn v. INS, 36 F.3d 1412, 1414 (9th Cir.

1994), and we have underscored the need for a

“comprehensive and unified” immigration policy, Arizona v.

United States, 567 U.S. 387, 401 (2012); see also, e.g.,

Regents of the Univ. of Cal. v. United States Dep’t of

Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (“Allowing

uneven application of nationwide immigration policy flies in

the face of [uniformity] requirements”); Hawaii v. Trump,

878 F.3d 662, 701 (9th Cir. 2017) (“Because this case

implicates immigration policy, a nationwide injunction was

necessary to give Plaintiffs a full expression of their rights”),

rev’d on other grounds, — U.S. —, 138 S. Ct. 2392 (2018).

The provisions of the INA that are affected by the

Proclamation represent the current “national immigration

policy, and an injunction that applies that policy to some

individuals while rescinding it as to others is inimical to the

principle of uniformity.” Regents of the Univ. of Cal.,

908 F.3d at 512. Consequently, a more limited injunction of

the Proclamation would “needlessly complicate agency and

individual action in response to the United States’s changing

immigration requirements,” E. Bay Sanctuary Covenant,

950 F.3d at 1284, and so the nationwide injunction of the

Proclamation is justified.

Thus, because the certified class is nationwide in scope

and promotes uniformity in administering federal

40 DOE #1 V. TRUMP

immigration law, the district court did not abuse its discretion

in entering a nationwide injunction.

V

In sum, the government has not established the requisite

irreparable harm necessary to justify a stay pending appeal.

Its rights may be vindicated upon completion of this

litigation. The alleged monetary harms to third parties upon

which the government relies do not constitute irreparable

harm. While that sole factor is dispositive, we also conclude

that the government did not meet its high burden to satisfy the

other Nken factors. It has not demonstrated likelihood of

success. Staying the injunction would injure both the plaintiff

class and third parties, and the public interest weighs against

entering a stay. The preliminary injunction preserves the

status quo during the pendency of this appeal. The district

court did not abuse its discretion in determining the scope of

the preliminary injunction.

For these reasons, we deny the motion to stay the

preliminary injunction pending appeal. We do not prejudge

the consideration of the merits appeal.

MOTION DENIED.

BRESS, Circuit Judge, dissenting:

Today’s decision is yet the latest example of our court

allowing a universal injunction of a clearly constitutional

Executive Branch immigration policy. This time, the

President in Proclamation No. 9945 imposed certain

DOE #1 V. TRUMP 41

restrictions on the entry of immigrants who, in the President’s

judgment, will unduly burden the American healthcare

system. In what unfortunately has become standard operating

procedure, the district court enjoined the Proclamation on a

nationwide basis before it could take effect. While declining

to endorse the district court’s central rationale, my fine

colleagues in the majority find a way to justify the district

court’s decision, while refusing to stay or limit its blanket

injunction.

The majority gravely errs in concluding that the

Proclamation is likely unconstitutional. There is no legal

basis to impose novel and unjustified restrictions on what the

Supreme Court has described as “the President[’s] sweeping

authority to decide whether to suspend entry, whose entry to

suspend, and for how long.” Trump v. Hawaii, 138 S. Ct.

2392, 2413 (2018). The President issued Proclamation No.

9945 based on his constitutional powers and his statutory

authority in 8 U.S.C. § 1182(f). The Supreme Court has held

that this provision “[b]y its terms” “exudes deference to the

President in every clause.” Id. at 2408. Yet the majority

opinion gives deference to everyone but the President—the

district court, whose analysis was deeply flawed; States who

joined an amicus brief and who are not even parties to this

case; and plaintiffs’ expert, Dr. Leighton Ku, who candidly

admits he performed “not an ideal analysis.”

It is a bad day for the separation of powers when the

Executive—operating at the apex of his constitutional

mandate—loses out to players who lack the authority that the

Constitution and Congress entrusted to him. And it is an

equally bad day for the rule of law when the majority opinion

endorses arguments that the Supreme Court expressly

rejected two years ago in Trump v. Hawaii. As with many

42 DOE #1 V. TRUMP

immigration policies, reasonable minds will differ as to

whether Proclamation No. 9945 is good or bad policy. But

the great policy debates of our time should be resolved in the

halls of Congress, the public square, and at the ballot box, not

by a district court in Oregon or a three-judge panel in San

Francisco. What I know is that Proclamation No. 9945 is

valid as a matter of law. And that is what matters here.

The majority’s unjustified intrusion on presidential

prerogative is, however, only made more problematic by the

scope of the injunction that the court allows. The district

court, as noted, issued a nationwide injunction, and one that

in fact operates worldwide. Injunctions such as this raise

many issues, as the Supreme Court has signaled in repeatedly

staying lower courts’ (and our court’s) universal injunctions.

See Wolf v. Innovation Law Lab, No. 19A960, 2020 WL

1161432 (U.S. Mar. 11, 2020); Dep’t of Homeland Sec. v.

New York, 140 S. Ct. 599 (2020); Barr v. E. Bay Sanctuary

Covenant, 140 S. Ct. 3 (2019); Trump v. Int’l Refugee

Assistance Project, 138 S. Ct. 542 (2017); Trump v. Hawaii,

138 S. Ct. 542 (2017).

Not heeding these signals, the majority allows another

universal injunction to remain in place, but with new and

unfortunate twists. When the district court enjoined

Proclamation No. 9945, it did so without certifying any class.

Just recently, however, and many months into this appeal of

its injunction, the district court certified two classes, one of

persons in the United States and one of “foreign nationals”

around the world. The sequence of events here is cause for

concern, and the majority’s reliance on the belated class

certification decision confirms that the district court’s

universal injunction was not justified when issued. But what

the class certification ruling also shows is that the excesses

DOE #1 V. TRUMP 43

of universal injunctions stem in large part from a failure

to abide by the rigorous requirements for class

certification—requirements that the district court

unfortunately did not observe.

If there is any solace here, it is that the majority has only

denied a stay of the injunction. I hope the merits panel that

receives this case will see things differently. But that

decision will be issued many months from now, if not longer.

There is no reason for the Executive to have his chosen and

plainly constitutional Proclamation put on ice in the

interim—a delay that inflicts real damage on our

constitutional system. For the reasons expressed here and in

my prior dissent in this matter, see Doe #1 v. Trump, 944 F.3d

1222, 1223–29 (9th Cir. 2019) (Bress, J., dissenting), I would

have stayed the district court’s injunction. I therefore

respectfully dissent.

I

On October 4, 2019, the President issued Presidential

Proclamation No. 9945, Suspension of Entry of Immigrants

Who Will Financially Burden the United States Healthcare

System, in Order To Protect the Availability of Healthcare

Benefits for Americans. 84 Fed. Reg. 53991 (2019).

Invoking the President’s authority under 8 U.S.C. § 1182(f)

and the Constitution, the Proclamation restricts the entry of

certain immigrants who cannot show that, within 30 days of

arriving in the United States, they “will be covered by

approved health insurance” or “possess[] the financial

resources to pay for reasonably foreseeable medical costs.”

Id. at 53992.

44 DOE #1 V. TRUMP

The Proclamation is founded on the President’s

determination that uninsured immigrants impose unwarranted

costs on the American healthcare system. The Proclamation

references “data show[ing] that lawful immigrants are about

three times more likely than United States citizens to lack

health insurance,” noting the “substantial” burden that the

uninsured impose on healthcare providers and taxpayers. Id.

at 53991. The President found that this burden—which takes

the “form of higher taxes, higher premiums, and higher fees

for medical services”—has contributed to uncompensated

care costs in excess of $35 billion for each of the last

10 years. Id. The Proclamation also identified other burdens

that the uninsured impose, including “reliance on publicly

funded programs” and overreliance on emergency room care,

which creates “delays for those who truly need emergency

services.” Id. The President concluded that “[c]ontinuing to

allow entry into the United States of certain immigrants who

lack health insurance or the demonstrated ability to pay for

their healthcare would be detrimental” to the national interest.

Id.

To address these problems, the Proclamation requires visa

applicants to show they “will be covered by approved health

insurance . . . within 30 days of the alien’s entry into the

United States, . . . unless the alien possesses the financial

resources to pay for reasonably foreseeable medical costs.”

Id. at 53992. The Proclamation defines “approved health

insurance” by reference to a lengthy list of coverage options.

Id. These include employer-sponsored and retiree plans,

family plans, visitor health insurance plans, unsubsidized

health plans offered on State exchanges, Medicare, or “any

other health plan that provides adequate coverage for medical

care as determined by the Secretary of Health and Human

Services.” Id. Plans need not be purchased prior to entry;

DOE #1 V. TRUMP 45

rather, the immigrant must only show that he or she will have

the required coverage within 30 days of entry. Id.

Enforcement of the Proclamation takes place all over the

world at the consular officer level. An immigrant must

“establish that he or she meets [the Proclamation’s]

requirements, to the satisfaction of a consular officer, before

the adjudication and issuance of an immigrant visa.” Id. at

53993. The Proclamation also empowers the Secretary of

State to “establish standards and procedures [to] govern[]

such determinations.” Id. This review is distinct from other

requirements that the law otherwise imposes. As the

Proclamation makes clear, its review process “is separate and

independent from the review and determination required by

other statutes, regulations, or proclamations in determining

the admissibility of an alien.” Id. That would include, for

instance, the public charge provisions of the Immigration and

Nationality Act (INA). 8 U.S.C. § 1182(a)(4).

Importantly, the Proclamation “shall apply only to aliens

seeking to enter the United States pursuant to an immigrant

visa.” 84 Fed. Reg. at 53992. The Proclamation thus “does

not affect the entry of aliens entering the United States

through means other than immigrant visas.” Id. at 53993.

That includes persons seeking nonimmigrant visas or

refugees. Nothing in the Proclamation “affect[s] any

individual’s eligibility for asylum, refugee status, withholding

of removal, or protection under the Convention Against

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment.” Id.

The Proclamation contains various other exceptions as

well. It does not apply to “any alien holding a valid

immigrant visa issued before the effective date of this

46 DOE #1 V. TRUMP

proclamation,” or “any alien under the age of 18, except for

any alien accompanying a parent who is also immigrating to

the United States and subject to this proclamation.” Id.

at 53992. The Proclamation does not cover “any alien who

is the child of a United States citizen or who is seeking to

enter the United States pursuant to” specified visas for

children. Id. Also excepted are business travelers, foreign

students, temporary agricultural workers, and various others.

Id. On a “case-by-case basis,” the Secretary of State may

exempt from the Proclamation “any alien whose entry would

be in the national interest.” Id. at 53993.

“[W]ithin 180 days” of the Proclamation’s effective date

and each year thereafter, the Secretary of State, “in

consultation with the Secretary of Health and Human

Services, the Secretary of Homeland Security, and the heads

of other appropriate agencies, shall submit” a report to the

President. Id. This report must address “the continued

necessity of and any adjustments that may be warranted to the

suspension and limitation on entry” imposed, as well as

“other measures that may be warranted to protect the integrity

of the United States healthcare system.” Id. The

Proclamation makes clear that “[i]f the Secretary of State, in

consultation with the heads of other appropriate executive

departments and agencies, determines that circumstances no

longer warrant the continued effectiveness of the suspension

and limitation on entry,” the President is to be “immediately”

advised. Id.

Two days before the Proclamation was set to take effect,

plaintiffs—a Multnomah County, Oregon advocacy

organization and several U.S. citizens with family members

seeking visas—obtained a temporary restraining order

blocking enforcement of the Proclamation worldwide. On

DOE #1 V. TRUMP 47

November 26, 2019, and leading with the non-delegation

doctrine, the district court granted plaintiffs’ request for a

universal preliminary injunction and refused to stay its order.

Doe #1 v. Trump, 418 F. Supp. 3d 573 (D. Or. 2019). After

the government sought a stay of the injunction pending

appeal, our court denied the government temporary

emergency relief. Doe #1 v. Trump, 944 F.3d 1222–23 (9th

Cir. 2019); see also id. at 1223–29 (Bress, J., dissenting).

Four months after the government sought a stay in this

court and three months after we heard argument on that

motion (and while the motion was under submission), the

district court granted class certification. Doe #1 v. Trump,

2020 WL 1689727 (D. Or. Apr. 7, 2020). The district court

issued this class certification decision four and a half months

after entering its nationwide preliminary injunction, and over

five months after entering the temporary restraining order that

blocked the Proclamation from taking effect anywhere.

The district court certified two classes under Federal Rule

of Civil Procedure 23(b)(2), one covering persons in the

United States and one covering persons all over the world:

(1) U.S. Petitioner Subclass:

Individuals in the United States who currently

have or will have an approved or pending

petition to the United States government to

sponsor a noncitizen family member for an

immigrant visa; and whose sponsored family

member is subject to the Proclamation and

unable to demonstrate to a consular officer’s

satisfaction that he or she “will be covered by

approved health insurance” within 30 days

48 DOE #1 V. TRUMP

after entry or will be able “to pay for

reasonably foreseeable medical costs”; and

(2) Visa Applicant Subclass:

Individuals who are foreign nationals who

(i) have applied for or will soon apply to the

United States government for an immigrant

visa; (ii) are otherwise eligible to be granted

the visa; but (iii) are subject to the

Proclamation and unable to demonstrate to the

satisfaction of a consular officer that they

“will be covered by approved health

insurance” within 30 days after entry or will

be able “to pay for reasonably foreseeable

medical costs.”

Id. at *17. The government’s time to seek leave to appeal the

district court’s class certification decision has not yet expired.

Fed. R. Civ. P. 23(f) (45-day deadline “if any party is the

United States, a United States agency, or a United States

officer or employee sued for an act or omission occurring in

connection with duties performed on the United States’

behalf”).

Today, our court now denies the government’s request for

a stay pending appeal, allowing the universal injunction to

remain in place. The court’s decision is quite wrong, and so

I respectfully dissent.

II

The following canonical factors control the government’s

request for a stay pending appeal:

DOE #1 V. TRUMP 49

(1) whether the stay applicant has made a

strong showing that he is likely to succeed on

the merits; (2) whether the applicant will be

irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure

the other parties interested in the proceeding;

and (4) where the public interest lies.

City & Cty. of S.F. v. USCIS, 944 F.3d 773, 789 (9th Cir.

2019) (quoting Nken v. Holder, 556 U.S. 418, 433–34

(2009)).

The majority opinion begins with the government’s

irreparable harm and only later turns to its likelihood of

success on the merits, the supposedly “second most important

Nken factor.” Maj. Op. 22. I have elsewhere explained how

a tactical deviation from the normal sequence of the stay

factors “waters down the merits analysis.” See Al Otro Lado

v. Wolf, 952 F.3d 999, 1022 (9th Cir. 2020) (Bress, J.,

dissenting). That is the case here, where the government’s

asserted harms follow from its strong likelihood of success on

the merits. See id. (“The sequencing of today’s opinion can

only reflect the majority’s implicit acknowledgement that the

government’s case is strongest where it most matters, namely,

the likelihood of success on the merits.”). Inversion of the

stay factors is a recent trend and one that produces distortion

in the stay analysis.

I thus begin, as we usually do, with the merits.

50 DOE #1 V. TRUMP

III

A

The majority concludes that the President has likely

exceeded his powers on the theory that Proclamation No.

9945 conflicts with statutes that supposedly forbid it, while

failing to fall within 8 U.S.C. § 1182(f). This is seriously

mistaken.

Under Trump v. Hawaii, the government has made a

strong showing that Proclamation No. 9945 is a lawful

exercise of the President’s vast constitutional and statutory

powers in this space. I address § 1182(f) first because, in

combination with his innate powers under the Constitution,

§ 1182(f) creates the high-water mark for the President’s

ability to place limits on who enters this country. Under

§ 1182(f) and the President’s inherent powers, Proclamation

No. 9945 is plainly valid.

Section 1182(f) provides:

Whenever the President finds that the entry of

any aliens or of any class of aliens into the

United States would be detrimental to the

interests of the United States, he may by

proclamation, and for such period as he shall

deem necessary, suspend the entry of all

aliens or any class of aliens as immigrants or

nonimmigrants, or impose on the entry of

aliens any restrictions he may deem to be

appropriate.

DOE #1 V. TRUMP 51

8 U.S.C. § 1182(f). Just two years ago, the Supreme Court in

Trump v. Hawaii held that § 1182(f) “exudes deference to the

President in every clause” and “grants the President sweeping

authority to decide whether to suspend entry, whose entry to

suspend, and for how long.” 138 S. Ct. at 2408, 2413. Based

on this “broad discretion to suspend the entry of aliens into

the United States,” the Supreme Court upheld against

constitutional and statutory challenges a presidential

proclamation suspending entry of persons from specified

countries. Id. at 2408.

The “sweeping authority” that justified the proclamation

in Trump v. Hawaii clearly allows the President to do what he

did here in Proclamation No. 9945. As the Supreme Court

has held, the “sole prerequisite set forth in § 1182(f) is that

the President ‘find[]’ that the entry of the covered aliens

‘would be detrimental to the interests of the United States.’”

Id. at 2408 (quoting 8 U.S.C. § 1182(f)). The President made

that finding in Proclamation No. 9945. 84 Fed. Reg. at

53991. In Trump v. Hawaii, moreover, the plaintiffs argued

that the proclamation there conflicted with provisions of the

INA, which the plaintiffs believed “already specified”

Congress’s approach to the issue. Id. at 2411. But the

Supreme Court expressly rejected this theory because

“[f]airly read,” § 1182(f) “vests authority in the President to

impose additional limitations on entry beyond the grounds for

exclusion set forth in the INA.” Id. at 2412. Proclamation

No. 9945 is another such “additional limitation[] on entry.”

Id. It is therefore plainly valid under § 1182(f), as interpreted

by the Supreme Court.

Against all of this, the majority offers two bases for

distinguishing Trump v. Hawaii and for concluding that the

President has likely exceeded his powers under § 1182(f).

52 DOE #1 V. TRUMP

But Trump v. Hawaii considered and squarely rejected the

very arguments that the majority credits.

First, the majority concludes that “the Proclamation’s

failure to explicitly or implicitly establish any time

constraints on the healthcare prohibition raises serious

questions as to whether the Proclamation is a ‘suspension’

according to the plain meaning of the term in § 1182(f).”

Maj. Op. 31–32. The Supreme Court considered and rejected

this same argument in Trump v. Hawaii. While the majority

opinion complains that Proclamation No. 9945 “does not

have an endpoint,” Maj. Op. 29, Trump v. Hawaii rejected the

plaintiffs’ argument that a § 1182(f) “suspension” “mean[t]

that the President is required to prescribe in advance a fixed

end date for the entry restrictions.” 138 S. Ct. at 2410.

Citing past proclamations, Trump v. Hawaii concluded it was

sufficient that the proclamation “makes clear that its

‘conditional restrictions’ will remain in force only so long as

necessary to ‘address’ the identified ‘inadequacies and risks’

within the covered nations.” Id. In particular, the Supreme

Court noted that the proclamation “establishes an ongoing

process to engage covered nations and assess every 180 days

whether the entry restrictions should be modified or

terminated.” Id.

The majority here claims that Proclamation No. 9945 is

different because it supposedly “omits any indication that the

health insurance requirement is temporary.” Maj. Op. 29.

Indeed, the majority claims the Proclamation lacks “even an

implicit” time limitation, “such as a limit measured by the

occurrence of some future event or condition.” Id. at 29.

That is an uncommonly unfair reading of the Proclamation.

An entire section of Proclamation No. 9945 provides for

ongoing review of its “suspension” on entry. The

DOE #1 V. TRUMP 53

Proclamation requires that a report be submitted to the

President on “the continued necessity of and any adjustments

that may be warranted to the suspension and limitation on

entry.” 84 Fed. Reg. at 53993 (emphasis added). The first

report must be submitted to the President within 180 days of

the Proclamation’s effective date, and “annually thereafter.”

Id. If “circumstances no longer warrant the continued

effectiveness of the suspension or limitation on entry,” the

President must “immediately” be advised. Id. (emphases

added). The review process here is not materially different

from the one at issue in Trump v. Hawaii. The majority

opinion blinks reality in suggesting otherwise.

Instead, the majority claims the Proclamation is not a

temporary limitation on entry because while agency officials

can advise the President that the suspension is no longer

warranted, “[t]here is no requirement that the President act on

the advice.” Maj. Op. 29. That is a rather remarkable

statement. When exercising his vast powers under § 1182(f)

and Article II of the Constitution, nothing requires the

President to bind himself to the mast and pre-commit to the

recommendations of inferior officials. And like the

Proclamation here, the proclamation in Trump v. Hawaii also

did not require the President uncritically to accept the advice

of his subordinates. See Pres. Procl. No. 99645, 82 Fed. Reg.

45161, 41169–70 (2017) (describing inter-agency

“recommendations to the President” and stating “the

Secretary of Homeland Security may recommend to the

President the removal or modification of any or all such

restrictions and limitations”) (emphases added). The

majority’s insistence that the fatal flaw in the Proclamation is

the President’s unwillingness to agree in advance to advice he

has not yet received reflects an untenable theory of Executive

power with no basis in principle or common sense.

54 DOE #1 V. TRUMP

Even more unsettling is the majority’s determination that

Proclamation No. 9945 is not a temporary “suspension”

because of its “likely ineffectiveness.” Maj. Op. 31. The

majority asserts that “the likely ineffectiveness of the health

insurance requirement suggests that uncompensated care

costs will remain high,” so that “the perceived ‘necessity’ of

the Proclamation could therefore continue in perpetuity.” Id.

In other words, the majority concludes that because the

Proclamation will not successfully “reduce uncompensated

healthcare costs,” those costs will remain high, meaning that

the Proclamation will continue in effect forever. Id. at 30.

The majority’s conclusion about the “likely

ineffectiveness” of the Proclamation turns on plaintiffs’

expert’s self-described “not . . . ideal analysis.” I will have

more to say on that later. What matters here is that the

majority’s reasoning again defies Trump v. Hawaii. The

plaintiffs there similarly maintained that a proclamation

would not adequately resolve “the President’s stated

concern.” 138 S. Ct. at 2409. In rejecting this view, the

Supreme Court could not have been clearer that “a searching

inquiry into the persuasiveness of the President’s

justifications is inconsistent with the broad statutory text [of

§ 1182(f)] and the deference traditionally accorded the

President in this sphere.” Id. Indeed, the Supreme Court

went on, “‘[w]hether the President’s chosen method’ of

addressing perceived risks is justified from a policy

perspective is ‘irrelevant to the scope of his [§ 1182(f)]

authority.’” Id. (quoting Sale v. Haitian Ctrs. Council, Inc.,

509 U.S. 155, 187–88 (1993)) (emphasis added).

The Supreme Court in Trump v. Hawaii in no uncertain

terms rebuffed the plaintiffs’ effort to “challenge the entry

suspension based on their perception of its effectiveness.” Id.

DOE #1 V. TRUMP 55

at 2421. The majority’s armchair conclusion about the

“likely ineffectiveness” of Proclamation No. 9945 is thus

precisely what the Supreme Court told us not to do. The

Supreme Court reiterated in Trump v. Hawaii that “we cannot

substitute our own assessment for the Executive’s predictive

judgments.” Id. Yet the majority opinion does just that.

Today’s decision is therefore a serious affront to the core

separation of powers principles that Trump v. Hawaii

reaffirms and reinforces.

The majority’s suggestion that the outcome might have

been different if the President had engaged in a more “data-

driven analysis,” Maj. Op. 30, reflects an equally serious

misunderstanding of our role. Since when does this court

know health policy better than the President of the United

States and the other Executive Branch officials whom the

Proclamation requires to be involved—the Secretary of State,

the Secretary of Health and Human Services, the Secretary of

Homeland Security, and “the heads of other appropriate

agencies”? 84 Fed. Reg. at 53993. The majority’s

conclusion that Proclamation No. 9945 is not a time-limited

“suspension” on entry is nothing more than a policy

disagreement with the Executive on a matter constitutionally

and statutorily committed to his authority.

Second, the majority concludes that Proclamation No.

9945 likely exceeds the President’s § 1182(f) powers because

the Proclamation “deals with a purely domestic economic

problem: uncompensated healthcare costs in the United

States.” Maj. Op. 32. Once again, the majority opinion

disregards Supreme Court precedent, mischaracterizes the

Proclamation, and improperly treads on the President’s

constitutional and statutory powers. Indeed, no court has ever

56 DOE #1 V. TRUMP

adopted the foreign/domestic distinction that the majority

tries to engraft onto § 1182(f).

Proclamation No. 9945 places restrictions on the entry of

immigrants into this country. For over a century, the

Supreme Court has been clear that “[t]he exclusion of aliens

is a fundamental act of sovereignty” that “is inherent in the

executive power to control the foreign affairs of the nation.”

United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537,

542 (1950); see also, e.g., Hawaii, 138 S. Ct. at 2418; INS v.

Aguirre-Aguirre, 526 U.S. 415, 425 (1999) (“[W]e have

recognized that judicial deference to the Executive Branch is

especially appropriate in the immigration context where

officials exercise especially sensitive political functions that

implicate questions of foreign relations.”) (quotations

omitted); 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 . . . .”). The majority’s notion

that the exclusion of persons from this country can be

recharacterized as “a purely domestic economic issue,” Maj.

Op. 33, thus contradicts settled Supreme Court case law.

Given the source of authority that the President invoked,

it is therefore unsurprising that Proclamation No. 9945 on its

face has an obvious international valence. If it ever goes into

effect, the Proclamation will be implemented by consular

officials abroad, who must interview aliens seeking visas.

84 Fed. Reg. at 53993; Notice of Info. Collection Under OMB

Emergency Review: Immigrant Health Ins. Coverage, 84 Fed.

Reg. 58199 (2019). The Proclamation allows the Secretary

of State to “establish standards and procedures governing

such determinations.” 84 Fed. Reg. 53993. It enables the

Secretary of State to exempt aliens from the Proclamation.

DOE #1 V. TRUMP 57

Id. And it entrusts the Secretary of State with lead

responsibility for preparing regular reports to the President.

Id. The idea that the Proclamation concerns matters “purely

domestic,” Maj. Op. 33, is clearly belied by the text and

intended operation of the Proclamation itself.

There are also obvious reasons why no court has forced

a foreign/domestic distinction on § 1182(f). The text of

§ 1182(f) allows the President to suspend the entry of aliens

who “would be detrimental to the interests of the United

States”—without defining what those interests may be and

without distinguishing between foreign and domestic

interests. Many (if not most) immigration policies naturally

implicate domestic interests as well as foreign ones. This is

to be expected for a provision that governs entry of persons

“into the United States.” 8 U.S.C. § 1182(f) (emphasis

added); see also, e.g., Pres. Procl. No. 4865, 46 Fed. Reg.

48107 (1981) (suspending entry to preserve “law enforcement

resources” and promote the “welfare and safety of

communities” in the southeastern United States).

In fact, many of the INA’s express grounds for

inadmissibility could be said to involve “domestic” concerns,

or even “purely domestic” ones. See, e.g., 8 U.S.C.

§ 1182(a)(1)(A)(i) (aliens with communicable diseases); id.

§ 1182(a)(1)(A)(ii) (aliens who have not been vaccinated); id.

§ 1182(a)(2)(A) (aliens with a criminal history); id.

§ 1182(a)(4) (aliens who are likely to become public

charges); id. § 1182(a)(5) (aliens who would disrupt domestic

labor markets or wages). Since § 1182(f) “vests authority in

the President to impose additional limitations on entry

beyond the grounds for exclusion set forth in the INA,”

Hawaii, 138 S. Ct. at 2412, it would be bizarre if § 1182(f)

58 DOE #1 V. TRUMP

reflected a foreign/domestic limitation that appears nowhere

in the text or structure of the INA as a whole.

This manufactured distinction is also inconsistent with

everything the Supreme Court has told us about § 1182(f).

That provision “exudes deference to the President in every

clause” and “grants the President sweeping authority to

decide whether to suspend entry, whose entry to suspend, and

for how long.” Hawaii, 138 S. Ct. at 2408, 2413. The

majority’s unprecedented effort to recast § 1182(f) wrongly

deprives the President of authority that is rightfully his and

will lead to endless problems of administration as courts

debate whether a given immigration policy is really more

foreign or domestic in nature. This is not the § 1182(f) that

Congress enacted or that the Supreme Court construed in

Trump v. Hawaii.

B

If Proclamation No. 9945 is a valid exercise of § 1182(f),

what is the problem? The district court’s primary answer was

that § 1182(f) was itself an unconstitutional delegation of

legislative power to the President. In the district court’s

view, “[t]here is no ‘intelligible principle’ provided as to

what it means to be ‘detrimental,’ what the ‘interests’ of the

United States are, what degree of finding is required, or what

degree of detriment is required.” Doe #1, 418 F. Supp. 3d

at 590. The majority opinion tellingly declines to endorse

this rationale. Maj. Op. 34. But its description of the district

court’s non-delegation analysis as “thoughtful” and

“forceful,” id., fails to acknowledge—and if anything,

compliments—the district court’s remarkable departure from

settled law.

DOE #1 V. TRUMP 59

I addressed the non-delegation issue at some length in my

prior dissent at the administrative stay stage. See Doe #1,

944 F.3d at 1226–27 (Bress, J., dissenting). But in brief: the

district court’s non-delegation holding is clearly incorrect.

On just two occasions in our country’s history has the

Supreme Court struck down a congressional statute under the

non-delegation doctrine. See Gundy v. United States, 139 S.

Ct. 2116, 2129 (2019). Section 1182(f) does not present just

the third occasion for doing so. That statute “has for decades

been the noted source of statutory authority for presidential

proclamations involving immigration matters.” Doe #1,

944 F.3d at 1226–27 (Bress, J., dissenting). It does not suffer

from a mortal constitutional defect hiding in plain sight.

Far from lacking an intelligible principle, the Supreme

Court in Trump v. Hawaii held that “the language of

§ 1182(f) is clear” and that § 1182(f) is a “comprehensive

delegation” of authority to the President. 138 S. Ct. at 2408,

2410; see also id. at 2408 (“clear statutory language”); id.

at 2410 (“clear text”). Section 1182(f), the Supreme Court

has told us, reflects “textual limits.” Id. at 2409. This is not

a quarry from which a non-delegation challenge can be

mined.

Indeed, the President’s power in this area does not derive

solely from Congress, because “[t]he exclusion of aliens” is

“inherent in the executive power to control the foreign affairs

of the nation.” Knauff, 338 U.S. at 542; see also Hawaii, 138

S. Ct. at 2424 (Thomas, J., concurring) (“Section 1182(f)

does not set forth any judicially enforceable limits that

constrain the President. Nor could it, since the President has

inherent authority to exclude aliens from the country.”)

(emphasis in original and citation omitted). That is why “the

strict limitation upon congressional delegations of power to

60 DOE #1 V. TRUMP

the President over internal affairs does not apply with respect

to delegations of power in external affairs.” Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 636 n.2 (1952)

(Jackson, J., concurring); see also Gundy, 139 S. Ct. at 2137

(Gorsuch, J., dissenting) (“[W]hen a congressional statute

confers wide discretion to the executive, no separation-of-

powers problem may arise if the discretion is to be exercised

over matters already within the scope of executive power.”)

(quotations omitted). This was, in fact, the Supreme Court’s

exact explanation when it rejected a non-delegation challenge

to a precursor to § 1182(f). See Knauff, 338 U.S. at 542.

Just last Term, the Supreme Court reiterated that it has

“almost never felt qualified to second-guess Congress

regarding the permissible degree of policy judgment that can

be left to those executing or applying the law.” Gundy,

139 S. Ct. at 2129 (quotations omitted). Engaging in such

second-guessing in the context of a longstanding statute in the

area of foreign affairs, as the district court did, would

fundamentally reorder our constitutional system. I wish the

majority had said this instead of implying that the district

court’s ruling warranted further consideration in this court.

C

The majority opinion instead holds that the government

has not made a strong showing of success because

Proclamation No. 9945 supposedly “conflicts” with: (1) the

Violence Against Women Act’s (VAWA) amendments to the

INA, 8 U.S.C. § 1182(a)(4)(E); (2) the Affordable Care Act

(ACA), 42 U.S.C. § 10821, et seq.; and (3) the INA’s public

charge provision, 8 U.S.C. § 1182(a)(4)(B)(i). Maj. Op.

22–28. I list these grounds in the order the majority presents

them.

DOE #1 V. TRUMP 61

The district court, however, devoted only a few sentences

to VAWA. See Doe # 1, 418 F. Supp. 3d at 597. The district

court did not rely at all on any perceived conflict with the

ACA. See id. at 597 n.6 (“The Court expresses no opinion at

this stage of the litigation about whether the Proclamation

also contravenes or overrides various healthcare laws.”). And

while the district court did rely on a claimed conflict with the

public charge provision, allegedly rendering the Proclamation

“unconstitutional under separation of powers,” id. at 593, this

was secondary to its central non-delegation theory.

It therefore is apparent that the majority justifies the

district court’s injunction on quite different legal bases than

the district court itself. But any uneasiness with the district

court’s rationales should have led to the injunction being

stayed, not reliance on new rationales with yet more legal

deficiencies. Regardless, the majority’s central theory that

Congress in various enactments foreclosed Proclamation No.

9945, rendering it unconstitutional, is plainly wrong.

1

I begin with the INA’s public charge provisions, because

on this point the majority once again flouts Trump v. Hawaii.

The INA renders inadmissible any alien who “is likely at any

time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A).

Consular officers make this determination using a series of

non-exhaustive “minimum” factors: age; health; family

status; assets, resources, and financial status; and education

and skills. Id. § 1182(a)(4)(B)(i)(I)–(V). The majority tells

us that Proclamation No. 9945 “eviscerates th[is] statutory

scheme by making the acquisition of designated forms of

health insurance the sole consideration of whether an

62 DOE #1 V. TRUMP

applicant should be excluded from consideration for a family

visa.” Maj. Op. 27.

The majority’s “evisceration” theory is wrong. And

Trump v. Hawaii—which the majority does not mention in

this portion of its opinion—tells us why. Nothing in

Proclamation No. 9945 “eviscerates” the public charge

provision, for the obvious reason that these are simply two

different grounds for inadmissibility. One can meet the

public charge provisions but not the Proclamation, and vice

versa. See 84 Fed. Reg. at 53993 (explaining that the review

the Proclamation requires “is separate and independent from

the review and determination required by other statutes,

regulations, or proclamations in determining the

inadmissibility of an alien”).

In fact, the Supreme Court in Trump v. Hawaii rejected

the very type of argument the majority adopts. There, the

plaintiffs argued that a proclamation nullified parts of the

INA because Congress in that statute had already addressed

“the problem of aliens seeking entry from countries that do

not share sufficient information.” 138 S. Ct. at 2411. The

Supreme Court held there was no such conflict with the INA

because § 1182(f) “vests authority in the President to impose

additional limitations on entry beyond the grounds for

exclusion set forth in the INA.” Id. at 2412 (emphases

added); see also id. at 2408 (“It is therefore unsurprising that

we have previously observed that § 1182(f) vests the

President with ‘ample power’ to impose entry restrictions in

addition to those elsewhere enumerated in the INA.”)

(quoting Sale, 508 U.S. at 187).

There is nothing unusual about Proclamation No. 9945

creating an independent—and yes, dispositive—ground for

DOE #1 V. TRUMP 63

inadmissibility, when that is the whole point of § 1182(f).

What the majority treats as a “violat[ion] of the INA,” Maj.

Op. 26, is just § 1182(f) of the INA in operation, as Trump v.

Hawaii makes plain. The majority today simply resurrects

the same “cramped” reading of § 1182(f) that Trump v.

Hawaii rejected. 138 S. Ct. at 2412.1

Implicit in the majority’s reasoning is the view that each

public charge factor must be given some weight, so that if any

one consideration is dispositive, it unravels the statutory

scheme. This interpretation has no basis in the statute. The

INA does not assign the public charge factors any weight

among themselves or in relation to independent eligibility

requirements. And as we recently explained, the public

charge “factors are not exhaustive,” and the Executive “may

add to them.” City & Cty. of S.F., 944 F.3d at 798. “Other

factors may be considered as well, giving officials

considerable discretion in their decisions.” Id. at 792; see

also id. at 796 (“[D]ifferent factors have been weighted more

or less heavily at different times.”).

1

Unsurprisingly, prior proclamations have addressed grounds of

inadmissibility that the INA already provided for to some extent.

Compare 8 U.S.C. § 1182(a)(2)(h) (rendering inadmissible “[a]ny alien

who commits or conspires to commit human trafficking offenses”), with

Pres. Procl. No. 8342, 74 Fed. Reg. 4093 (2009) (barring entry of certain

government officials who have “impeded” or “failed to implement”

antitrafficking efforts); compare also 8 U.S.C. § 1182(a)(3)(E) (rendering

inadmissible Nazi-affiliated aliens who “ordered, incited, assisted, or

otherwise participated in the persecution of any person because of race,

religion, national origin, or political opinion”), with Pres. Procl. No. 8697,

76 Fed. Reg. 49277 (2011) (barring entry of any alien who “ordered,

assisted, aided and abetted, committed or otherwise participated in . . .

widespread or systematic violence” based on protected characteristics).

64 DOE #1 V. TRUMP

The majority complains that the public charge statute

“lists various factors that the consular office can consider”

and “[h]ealth insurance is not among them.” Maj. Op. 26.

But again, that is the expected result of a statutory scheme

that allows the President to impose “additional limitations on

entry.” Hawaii, 138 S. Ct. at 2412. The majority’s quarrel is

thus really with § 1182(f) itself, not any actual distortion of

the INA. There is no conflict between a public charge

provision that is “flexible” and “ambiguous,” City & Cty. of

S.F., 944 F.3d at 798, and a Proclamation premised on the

“clear” and “comprehensive delegation” that Congress

conferred on the President in § 1182(f), Hawaii, 138 S. Ct. at

2408–09.

2

Unlike the district court, the majority’s lead point is that

Proclamation No. 9945 “conflicts with the Violence Against

Women Act’s (‘VAWA’) amendments to the INA.” Maj.

Op. 22. These amendments provide that the INA’s public

charge provisions “shall not apply” to an alien who is the

victim of certain crimes. 8 U.S.C. § 1182(a)(4)(E); see also

id. § 1154(a)(1)(A)(iii)–(vi). Once again, the majority fails

in its effort to save the district court’s injunction.

As an initial matter, no plaintiff in this case claims that

their relatives are subject to the VAWA exemption. VAWA

is thus irrelevant to this litigation and plaintiffs would lack

standing to invoke it. E.g., Easter v. Am. W. Fin., 381 F.3d

948, 962 (9th Cir. 2004); Halet v. Wend Inv. Co., 672 F.2d

1305, 1309 n.2 (9th Cir. 1982). But in any event, the

Proclamation does not conflict with VAWA for the obvious

reason that a petitioner who meets VAWA’s eligibility

requirements is not thereby entitled to admission into the

DOE #1 V. TRUMP 65

United States. Rather, that person is merely exempted from

the public charge limitations. 8 U.S.C. § 1182(a)(4)(E).

Nothing in VAWA or the INA requires the President to

impose a VAWA-like carve-out on other grounds for

inadmissibility, and nothing in the INA imposes such a

restriction on the President’s broad authority under § 1182(f).

The majority thus badly errs in concluding that the

Proclamation “contravenes the well-settled principle that the

President’s powers are executive, not legislative in nature,”

because the President cannot “repeal statutes.” Maj. Op. 23

(quotations omitted). Such conclusory statements of

constitutional law have nothing to do with what the President

has done here. VAWA is a limited exception to one ground

for inadmissibility, not an overarching limit on the

President’s expansive authority under § 1182(f) or his

independent constitutional powers in this area.2

3

The majority also holds that “[t]he government has not

submitted any evidence” of likely success on the plaintiffs’

2

I also find unfortunate the majority’s attempt to boost its holding by

asserting that the government “has made no showing at all” on VAWA

and “does not respond to the merits of this challenge.” Maj. Op. 22, 23.

The district court, as noted, devoted only a few scant sentences to VAWA.

Even so, the government expressly argued in this court that the

Proclamation did not conflict with VAWA because Trump v. Hawaii

“rejected this argument, holding that ‘§ 1182(f) vests the President with

‘ample power’ to impose entry restrictions in addition to those elsewhere

enumerated in the INA.’” Reply Br. 5 (quoting 138 S. Ct. at 2408)

(emphasis omitted). Moreover, VAWA is part of the public charge

provision and the government has argued at length why the Proclamation

does not conflict with that provision as a whole.

66 DOE #1 V. TRUMP

assertion that “the Proclamation violates the” Affordable Care

Act (ACA). Maj. Op. 24. That is rather harsh, considering

that the district court did not reach this issue. Doe #1, 418 F.

Supp. 3d at 597 n.6. The plaintiffs devoted less than a page

of their stay opposition to the ACA, and the government then

addressed the issue in its reply brief. All the same, the notion

that the Proclamation conflicts with the ACA is manifestly

incorrect.

The ACA authorized the creation of State-based health

insurance markets, called “exchanges,” “where people can

shop for insurance, usually online.” King v. Burwell, 135 S.

Ct. 2480, 2487 (2015) (citing 42 U.S.C. § 18031(b)(1)).

Under the ACA, “individuals with household incomes

between 100 percent and 400 percent of the federal poverty

line” may purchase subsidized insurance plans with the help

of “refundable tax credits.” Id. These tax credits are

available to “lawfully present” aliens whose incomes are less

than 100 percent of the poverty line and who are also

ineligible for Medicaid. 26 U.S.C. § 36B(c)(1)(B). Neither

subsidized insurance nor Medicaid satisfy the Proclamation’s

requirements. Under the ACA, consumers can also purchase

unsubsidized insurance on State exchanges. 42 U.S.C.

§§ 18031(d)(2)(A), 10832(b). Such unsubsidized plans do

satisfy Proclamation No. 9945. See 84 Fed. Reg. at 53392.

In all cases, however, an immigrant must be “lawfully

present” and a resident of a State before he can purchase any

health insurance from that State’s exchange, whether

subsidized or not. 26 U.S.C. § 36B(c)(1)(B); 42 U.S.C.

§ 18032(f)(1)(A)(ii); 45 C.F.R. 155.305(a)(1), (3).

The majority claims that because the Proclamation

excludes subsidized plans under State exchanges, “an

immigrant attempting to legally enter the United States will

DOE #1 V. TRUMP 67

not have access to ACA tax credits as Congress intended.”

Maj. Op. 25. That is a non sequitur. As the majority

acknowledges, under the ACA, subsidized plans are

only available to individuals “lawfully present” in the

United States. 26 U.S.C. § 36B(c)(1)(B); 42 U.S.C.

§ 18032(f)(1)(A)(ii). The ACA thus does not cover persons

who are subject to the Proclamation, who are not lawfully

present here. Nor does the Proclamation prevent individuals,

once they are “lawfully present,” from seeking subsidized

insurance under State exchanges. And the ACA says nothing

about who may or may not enter this country. That Congress

has created a benefit for individuals who have “lawfully”

entered the United States does not then give persons a right

to enter the country to obtain those benefits.

The apparent suggestion in the majority opinion is that the

Proclamation will prevent the entry of all persons who could

then later take advantage of the subsidized plans that the

ACA makes available to immigrants who are “lawfully

present.” But as discussed above, the Proclamation only

covers a subset of immigrants. There are many other

immigrants, including persons already lawfully present in the

United States, who can try to take advantage of subsidized

insurance options. And that is to say nothing of the persons

who are subject to the Proclamation, who can meet its

eligibility requirements, and who can then pursue subsidized

health insurance once they arrive. The suggestion that the

Proclamation somehow drains an aspect of the ACA of all

function is thus obviously not true.

The majority next claims that although immigrants can

satisfy the Proclamation by purchasing unsubsidized

insurance on State exchanges, because immigrants must be

“lawfully present” in the United States to buy such insurance,

68 DOE #1 V. TRUMP

these immigrants are placed in “a Catch-22.” Maj. Op. 25.

By the majority’s reasoning, such persons “cannot obtain an

‘approved’ unsubsidized insurance plan unless they have

been legally admitted, but they cannot be legally admitted

unless they have obtained an ‘approved’ insurance plan.” Id.

This theory collapses because the latter part is not true.

Under the Proclamation, the immigrant must only show that

he “will be covered by approved health insurance . . . within

30 days of the alien’s entry into the United States.” 84 Fed.

Reg. 53992 (emphasis added). The majority’s “Catch-22”

thus relies entirely on a misreading of the Proclamation.

IV

The government has not only made an overwhelming

showing of likely success on the merits, it has also shown that

it will be irreparably harmed absent a stay of the district

court’s injunction. Nken, 556 U.S. at 433–34. The majority’s

determination otherwise depends on it placing plaintiffs’

expert and an amicus brief on higher footing than the

President of the United States.

A

The harm that the court’s injunction inflicts is irreparable

and real—to the interests the Executive seeks to promote

through the Proclamation and to the core separation of

powers principles that make the Proclamation lawful. The

injunction is a severe affront to the President’s authority,

itself an irreparable injury. See Maryland v. King, 133 S. Ct.

1, 3 (2012) (Roberts, C.J., in chambers) (“[A]ny time a State

is enjoined by a court from effectuating statutes enacted by

representatives of its people, it suffers a form of irreparable

injury.”) (quotations omitted).

DOE #1 V. TRUMP 69

The majority downplays the government’s institutional

injury on the theory that the Proclamation’s lawfulness “is at

the core of this dispute, to be resolved at the merits stage.”

Maj. Op. 16. But by this logic, a court of appeals could never

stay a district court’s injunction until the merits were finally

adjudicated, which is not the law. The merits of a case of

course are at issue at the “merits stage.” But the merits are

relevant now too, because we are required to evaluate the

likelihood of success on the merits at the stay stage. See

Nken, 556 U.S. at 434. In this case, the “clear statutory

language” of § 1182(f) reflects a “comprehensive delegation”

of “sweeping authority” to the Executive, Hawaii, 138 S. Ct.

at 2408, 2413, who Congress entrusted with the important

mission of suspending the entry of aliens who “would be

detrimental to the interests of the United States.” 8 U.S.C.

§ 1182(f). The court’s deprivation of this fundamental power

is an acute institutional injury that is not made more palatable

by telling the government it must wait many months, if not

much longer, for a final decision on the merits. See

Maryland, 133 S. Ct. at 3.

The majority discounts the government’s institutional

injury on the theory that if such injury were credited, “no act”

of the President could be enjoined because “the irreparable

harm standard [would be] satisfied by the fact of executive

action alone.” Maj. Op. 16. That is a mischaracterization.

The majority can make this suggestion only because it took

the stay factors out of order and addressed the harms before

the merits. Where, as here, the government has shown an

overwhelming likelihood of success on the merits, enjoining

it from enforcing its plainly lawful policy is a constitutionally

significant injury.

70 DOE #1 V. TRUMP

Institutional injury aside, the government has

demonstrated that its inability to enforce the Proclamation

pending appeal will cause irreparable harm. See City & Cty.

of S.F., 944 F.3d at 806 (finding irreparable harm where “the

preliminary injunctions will force DHS to grant status to

those not legally entitled to it”). The President determined in

Proclamation No. 9945 that immigrants “who have not

demonstrated any ability to pay for their” medical care

impose significant and unwarranted costs on the American

healthcare system. 84 Fed. Reg. 53991. The Proclamation

does not apply once an immigrant has been admitted to the

United States, so it can never apply to aliens admitted during

the pendency of this litigation. See 84 Fed. Reg.

at 53992–93. The costs they impose while the injunction

remains in place are thus unrecoverable, creating irreparable

harm. See California v. Azar, 911 F.3d 558, 581 (9th Cir.

2018).

The scope of the injunction here only confirms both the

fact of irreparable harm and its magnitude. The injunction

applies worldwide and, by the majority’s estimation, “would

negatively affect approximately 60% of all immigrant visa

applicants” and “375,000 immigrants each year.” Maj.

Op. 19. This only “prove[s] [the government’s] point,”

confirming that the harm “is not only irreparable, but

significant.” City & Cty. of S.F., 944 F.3d at 806. Nor is the

resulting injury limited to “third parties,” as the majority

suggests. Maj. Op. 19. The government funds considerable

aspects of our healthcare system, and it is undeniable that the

uninsured would require the government to “incur some

otherwise avoidable financial costs if a stay is denied.”

Golden Gate Rest. Ass’n v. City & Cty. of S.F., 512 F.3d

1112, 1125 (9th Cir. 2008); see also Azar, 911 F.3d at 581

DOE #1 V. TRUMP 71

(explaining that “economic harm” is “irreparable” when the

government “will not be able to recover monetary damages”).

Contrary to the majority opinion, the harms here are also

not “purely monetary.” Maj. Op. 18. The Proclamation

identifies non-monetary harms that the uninsured impose,

such as increased strain on “publicly funded programs” and

overreliance on emergency rooms, “causing overcrowding

and delays for those who truly need emergency services.”

84 Fed. Reg. 53991. These too are irreparable harms that

cannot be avoided absent a stay of the injunction. See Golden

Gate Rest. Ass’n, 512 F.3d at 1125 (granting stay because

“individuals without health coverage are significantly less

likely to seek timely medical care than those with health

coverage,” and consequently are more likely to “seek

emergency treatment” from government-funded hospitals and

clinics).

B

The majority opinion disbelieves the government’s

asserted harms because while the Proclamation states that

“immigrants are about three times more likely than United

States citizens to lack health insurance,” 84 Fed. Reg 53991,”

there is, the majority complains, “no citation in the

Proclamation for this statistic.” Maj. Op.16. This is of a

piece with the majority’s criticism that the Proclamation lacks

“data-driven analysis” or a “further cost quantification” (an

apparently technical requirement that the majority opinion

leaves undefined). Id. at 17, 30. The majority’s failure to

give the Executive any deference is clear legal error.

A presidential proclamation is not a second-grade math

assignment, where a student must “show his work” to get

72 DOE #1 V. TRUMP

credit. In Trump v. Hawaii, the Supreme Court found it

“questionable” whether the President operating under

§ 1182(f) was in any way required to “explain [his] finding[s]

with sufficient detail to enable judicial review.” 138 S. Ct.

at 2409. But “even assuming that some form of review is

appropriate,” the Supreme Court still rejected “plaintiffs’

request for a searching inquiry into the persuasiveness of the

President’s justifications,” which would be “inconsistent with

the broad statutory text and the deference traditionally

accorded the President in this sphere.” Id.

The majority’s demand that the government explain the

Proclamation’s factual findings, Maj. Op. 15–16, is thus

directly contrary to the Supreme Court’s admonition that the

President is “‘not required to conclusively link all of the

pieces in the puzzle before [courts] grant weight to [his]

empirical conclusions.’” Hawaii, 138 S. Ct. at 2409 (quoting

Holder v. Humanitarian Law Project, 561 U.S. 1, 35 (2010)).

The Constitution does not require the President to engage in

the majority’s preferred “data-driven analysis” or “cost

quantification,” nor does § 1182(f). Maj. Op. 17, 30. The

court today thus shows a profound disrespect to the

Executive, contrary to precedent. And the majority’s token

acknowledgement that § 1182(f) “‘exudes deference to the

President,’” Maj. Op. 28 (quoting Hawaii, 138 S. Ct.

at 2408), is no substitute for the actual deference owed to the

President’s findings when those findings are under review.

The majority opinion also errs in attempting to distinguish

Trump v. Hawaii on the ground that the proclamation at issue

there contained “extensive findings” following a

“comprehensive” inter-agency review. Maj. Op. 18

(quotations omitted). As discussed above, Trump v. Hawaii

rejected the premise that these findings were even necessary.

DOE #1 V. TRUMP 73

See 138 S. Ct. at 2409 (rejecting “plaintiffs’ request for a

searching inquiry into the persuasiveness of the President’s

justifications”). Nor did the Supreme Court in Trump v.

Hawaii suggest that the quantum of findings at issue there

represented a constitutional or statutory floor. Instead, Trump

v. Hawaii referenced prior presidential proclamations that

were just several sentences long. Id. As was the case with

the proclamation in Trump v. Hawaii itself, Proclamation No.

9945 is “more detailed” than those. Id. The notion that

Trump v. Hawaii somehow supports today’s decision is thus

plainly incorrect.

Finally, the majority seriously errs in suggesting that

because the government is seeking a stay of an injunction,

which is an exercise of the court’s “discretion,” the

government is not entitled to the deference that Trump v.

Hawaii commands. Maj. Op. at 17. The procedural posture

of a case is not a license to disregard the fundamental

principle that “‘it is not the judicial role . . . to probe and test

the justifications’ of immigration policies.” Hawaii, 138 S.

Ct. at 2419 (quoting Fiallo v. Bell, 430 U.S. 787, 799 (1977)).

The court’s approach loads the dice against the government

any time a district court enjoins a government policy. Simply

put, the deference that § 1182(f) “exudes,” id. at 2408, does

not evaporate whenever a single district court has enjoined a

presidential policy and the government is seeking a stay.

In any event, for all the court’s refusal to accept the

Proclamation’s determination that immigrants are three times

more likely than citizens to lack health insurance, the

plaintiffs do not even contest this point. In fact, a report that

plaintiffs’ own expert authored (which is referenced in his

expert materials in this case) makes the very same

observation: “[A]lmost half of all immigrants—here defined

74 DOE #1 V. TRUMP

as noncitizen immigrants—are uninsured, a level that is about

three times higher than for native-born citizens.” Leighton

Ku, Why Immigrants Lack Adequate Access to Health Care

and Health Insurance (Migration Policy Inst., Sept. 1, 2006).

C

Instead of giving the President any deference, the

majority makes some findings of its own and then treats those

as authoritative. Contrary to the Proclamation, the majority

tells us there is no irreparable harm because, in fact, “the

impact of uninsured immigrants on uncompensated healthcare

costs is minimal.” Maj. Op. 18. For this, the majority relies

on only a single source: the declaration of plaintiffs’ expert,

Dr. Leighton Ku. See id. at 17. But exuding deference to

Dr. Ku is not what the law allows.

Dr. Ku is a professor of health policy. The only prior

expert work he discloses is on behalf of plaintiffs who are

challenging various immigration policies from the current

presidential administration. Without any basis at all, Dr. Ku

opines that “the President and the State Department, which is

charged with implementing the [P]roclamation, failed to

conduct a careful and reasoned analysis of the policy.”

Dr. Ku criticizes the President for acting “without a reasoned

approach to administrative rulemaking,” faulting the

Executive for “fail[ing] to carefully consider the ramifications

of this policy.” Dr. Ku further maintains that “if the President

is concerned about reducing uncompensated care as

expressed in the [P]roclamation, then it would make more

sense to . . . expand[] Medicaid or other forms of health

insurance, such as the health insurance marketplaces.” It

should go without saying that the Constitution does not

DOE #1 V. TRUMP 75

enshrine the unsupported legal opinions and transparent

policy preferences of an unelected academic.

The majority’s fealty to Dr. Ku is even more remarkable

when one examines his conclusion that uninsured immigrants

do not burden the American healthcare system. Dr. Ku asks

in his declaration: “[W]hat is the value of uncompensated

care provided to legally admitted immigrants who might have

been affected by this [Proclamation]?” Dr. Ku then admits

that “I am not aware of any information that accurately

answers this question.” Id. (emphasis added). That is enough

to disregard his opinion.

Dr. Ku then proceeds to come up with an answer to the

question on his own. But in arriving at the figures that the

majority treats as definitive, Maj. Op. 16, Dr. Ku compares

“recent immigrants” (those “who entered the U.S. within five

years” of 2017) to “not recent immigrants” (“U.S. born-

citizens and immigrants who have been in the U.S. for five

years or more” (emphasis added)). This comparison does not

even try to measure the cost of care provided to uninsured

immigrants in the United States. No wonder even Dr. Ku in

his own declaration “recognize[s] that this is not an ideal

analysis.”

An expert who has disqualified himself under Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993),

through his own admissions should not be the basis for

enjoining a lawful presidential proclamation. If nothing else

is clear under the Constitution and Supreme Court case law

interpreting § 1182(f), it is that a professor’s self-described

“not . . . ideal analysis” should not win out over the

conclusions of the President. The majority’s elevation of

Dr. Ku’s declaration over the Executive’s determinations in

76 DOE #1 V. TRUMP

the Proclamation is a radical departure from settled law and

a serious threat to the democratic process.

The majority also refuses to give deference to the

President based on its determination that “immigrants are

more likely to represent favorable insurance risk[s] in [ACA]

marketplaces because they tend to be relatively healthier than

the normal insured population and use fewer healthcare goods

and services.” Maj. Op. 17 (quotations omitted). The

majority purports to locate this conclusion in “[t]he record”

in this case. Id.

But what the majority cites on this point, and what it calls

“the record,” is really just an amicus brief from twenty-one

States, the District of Columbia, and New York City, which

was submitted in the district court. And what that amicus

brief cites are the comments these same States submitted in

response to a State Department notice describing how the

Department would implement the Proclamation. These

comments did not disclose any underlying data or undertake

any apparent study of immigrant healthcare costs. See, e.g.,

Covered Cal. Cmt. On DOS-2019-0039-0001 (Oct. 31, 2019),

available at: https://www.regulations.gov/document?D=DOS-

2019-0039-0241 (California’s three-and-a-half page letter).

But regardless, it is quite circular for administrative

comments that unsuccessfully “urge[d] the withdrawal” of

Proclamation No. 9945, id., to wind up as authoritative when

cited in the same commenters’ amicus brief challenging that

very Proclamation.

In short, the majority’s determination that the government

has not made a showing of irreparable harm depends on its

refusal to give the President any deference at all, contrary to

precedent.

DOE #1 V. TRUMP 77

V

The government has shown an overwhelming likelihood

of success on the merits, as well as irreparable harm. These

factors are “the most critical” in the stay analysis, and only

“[o]nce an applicant satisfies” these factors will the court

consider “harm to the opposing party and weighing the public

interest.” Nken, 556 U.S. at 434–35. Considering those third

and fourth stay factors only confirms that the court should

have issued a stay.

A

The majority opinion strives to create the impression that

the named plaintiffs’ relatives were on the cusp of entering

the United States and that only the Proclamation is holding

them back. The majority thus asserts that “[t]he individual

[p]laintiffs are seven U.S. citizens” whose “family members

have successfully completed the traditional steps for

obtaining an immigrant visa.” Maj. Op. 12–13. But that is

untrue: most of plaintiffs’ relatives do not even have visa

interviews scheduled and some have not submitted required

documentation.3 The majority further states that plaintiffs’

“family members had qualified for entry under established

immigration policy.” Id. at 36. That is also untrue. Nor is

there any basis for the majority’s scaled back assertion that

the named plaintiffs’ relatives were “otherwise likely

3

The only exception is the relative of one named plaintiff who

received an immigrant visa after the district court issued its injunction.

Plfs.’ Notice of Additional Facts, Doe #1 v. Trump, Case No. 3:19-cv-

01743-SI (D. Or.), ECF No. 123. But neither the Proclamation nor the

district court’s injunction now have any bearing on this person. This

section will thus discuss only the plaintiffs with any potential future harm,

even if that harm is ultimately speculative.

78 DOE #1 V. TRUMP

qualified for entry under § 1182(a)” for admission into the

United States. Id. at 21. With the one exception noted above,

see ante at 77 n.3, it is entirely speculative whether the named

plaintiffs’ relatives will meet the numerous eligibility

requirements and would be allowed to enter this country at

all, regardless of Proclamation No. 9945.

The majority fails to disclose that the named plaintiffs

have only received approved I-130 petitions. A United States

citizen files an I-130 petition with the U.S. Citizenship and

Immigration Services (USCIS) or a consular official, on

behalf of a relative who is seeking to become a permanent

resident in the United States. 8 U.S.C. § 1154(a)(1)(A)(i);

8 C.F.R. § 204.1(a)(1). Approval of an I-130 petition is “only

the first step in the process” toward becoming a lawful

permanent resident. Montoya v. Holder, 744 F.3d 614,

616 (9th Cir. 2014); see also Vasquez de Alcantar v. Holder,

645 F.3d 1097, 1103 (9th Cir. 2011).

Only then, after the alien proceeds through the queue,

does the alien apply for a visa and the United States begin its

review of any request for admission. Kerry v. Din, 135 S. Ct.

2128, 2131 (2015) (plurality op.) (“If and when a petition is

approved, the alien may apply for a visa by submitting the

required documents and appearing at a United States

Embassy or consulate for an interview with a consular officer.

Before issuing a visa, the consular officer must ensure the

alien is not inadmissible under any provision of the INA.”)

(citations omitted); Montoya, 744 F.3d at 616. As we have

recognized, “[t]he wait time for these immigrant visas can be

considerable.” Landin-Molina v. Holder, 580 F.3d 913, 920

n.8 (9th Cir. 2009); see also Scialabba v. Cuellar de Osorio,

573 U.S. 41, 50 (2014) (plurality op.) (“All of this takes

time—and often a lot of it . . . . A family-sponsored

DOE #1 V. TRUMP 79

immigrant may stand in line for years—or even decades—just

waiting for an immigrant visa to become available.”). There

are also myriad reasons why a person may ultimately be

denied entry. See 8 U.S.C. § 1182(a); 22 C.F.R. § 42.62. The

Proclamation, of course, ensures that all these other

requirements for admission remain intact.

As the foregoing confirms, approval of an I-130 petition

“cannot be the equivalent of inspection and authorization to

enter and remain in the United States.” Vasquez de Alcantar,

645 F.3d at 1103. It “does not confer any change in status.”

Id.; see also Ngongo v. Ashcroft, 397 F.3d 821, 823 (9th Cir.

2005). Instead, we have explained, approval of an I-130

petition “does not raise [an] alien’s expectations” for

permanent residence “above the level of hope.” Montoya,

744 F.3d at 617 (quotations omitted). The majority therefore

errs in suggesting that plaintiffs’ relatives were qualified to

become lawful permanent residents or were about to reach

that status, but for the Proclamation.

The named plaintiffs’ declarations only confirm this.

When the district court issued its injunction, none of the

plaintiffs’ relatives had consular interview dates scheduled,

and seven such relatives are still awaiting interview dates.

Doe #1, 2020 WL 1689727, at *6–7. Interviews aside,

various plaintiffs were still working to submit the appropriate

paperwork to apply for a visa when the injunction was issued.

See Doe #2 Decl. ¶ 7 (“[W]e are currently working on the

collection of information and documents . . . .”); id. ¶ 9 (“I

will need a joint sponsor in order to complete the affidavit of

support section of my parents’ immigrant visa.”); Doe #3

Decl. ¶ 9 (“[M]y husband and I have been working to gather

the documents required for consular processing. Several

times, we thought we had all of the paperwork submitted, but

80 DOE #1 V. TRUMP

the government then requests additional, and different

information from us.”); Ramos Decl. ¶ 12 (explaining that she

is “in the process of gathering all the documents required by

the consulate”). And many months later, at least two of

plaintiffs’ relatives are still “collecting the necessary

information.” Doe #1, 2020 WL 1689727, at *6. This only

confirms that plaintiffs’ relatives are still in the middle of the

visa process.

Equally misplaced is the majority’s emphasis on certain

family members who have received provisional I-601A

waivers. See Maj. Op. 21. I-601A waivers are available to

aliens in the consular visa process who have been unlawfully

present in the United States and who are immediate relatives

of U.S. citizens. See 8 U.S.C. § 1182(a)(9)(B)(i); 8 C.F.R.

§ 212.7(e). The I-601A waiver was developed to expedite the

interview process by allowing applicants “who require a

waiver of inadmissibility for unlawful presence to apply for

such a waiver in the U.S. before they depart for an immigrant

visa interview at a U.S. embassy or consulate abroad.”

Romero v. Barr, 937 F.3d 282, 287 n.2 (4th Cir. 2019)

(emphasis added).

The grant of an I-601A waiver, like the approval of an I-

130 petition, is thus a prefatory mechanism to facilitate the

visa application process. It does not mean that plaintiffs’

relatives were “otherwise likely qualified” for admission to

the United States. Nor can the majority reasonably maintain

that the Proclamation will result in family separation for

persons with I-601A waivers. Maj. Op. 21. Once again,

because there is no indication that plaintiffs’ relatives are

otherwise admissible, it is impossible to say that any family

separation is due to the Proclamation, as opposed to the

numerous other requirements that our immigration laws

DOE #1 V. TRUMP 81

impose. Given that plaintiffs’ relatives have not completed

the visa process, the Proclamation is not the immediate (or

future) cause of any alleged family separation.

Finally, it also is not apparent that plaintiffs’ family

members will be unable satisfy the Proclamation. The district

court enjoined the Proclamation before it could take effect,

allowing no chance for any person to even attempt to satisfy

the Proclamation’s requirements. The Proclamation allowed

the Secretary of State to “establish standards and procedures”

to govern consular officers’ application of the Proclamation,

84 Fed. Reg. 53993; due to the injunction, we cannot know

how any such guidance would affect consular officers’

determinations.

Although the majority claims the plaintiffs “submitted

evidence” that their relatives are unable to meet the

Proclamation’s requirements, Maj. Op. 19, many of the

plaintiffs’ declarations provide no details about their finances,

the amount of income they or their relatives have available,

or the prices of qualifying plans under the Proclamation. The

Proclamation also gives the Secretary of State or his designee

the ability to exempt aliens “whose entry would be in the

national interest,” as determined on a “case-by-case basis.”

84 Fed. Reg. 53993. For all these reasons, it is entirely

speculative how the Proclamation will affect anyone who is

still going through the immigration process.

In short, the sincere “hope” that plaintiffs’ relatives will

qualify for legal status is no substitute for actual evidence that

plaintiffs’ relatives are entitled to visas but for the

Proclamation. On that issue, there is no evidence at all.

82 DOE #1 V. TRUMP

B

The majority creates another misimpression in purporting

to justify the injunction “based on evidence in the record” that

the “Proclamation would cause significant harm to 21 states,

the District of Columbia, and New York City if allowed to go

into effect there.” Maj. Op. 37. The majority tells us that

“[t]he record demonstrates” the “significant harm” these

jurisdictions would suffer if the Proclamation is allowed to go

into effect. Id. at 34–35 (emphasis added). And the majority

opinion further informs us this “evidence [was] credited by

the district court, and that “[t]he government does not

seriously contest this evidence.” Id. at 35 (emphases added).

These statements are, regrettably, quite misleading. The

only source for the cited “evidence” is the amicus brief that

twenty-one States, the District of Columbia, and New York

City filed in the district court. The Supreme Court has

instructed that “the stated desires of amici are no substitute

for a class action, are not evidence in the case, and do not

influence our decision; we examine an amicus curiae brief

solely for whatever aid it provides in analyzing the legal

questions before us.” Sony Corp. of Am. v. Universal City

Studios, Inc., 464 U.S. 417, 434 n.16 (1984). The majority

opinion violates these fundamental precepts. But it is,

unfortunately, more problematic than that.

The “evidence” of “significant harm” to the jurisdictions

that joined the amicus brief consists of the following:

thousands of persons in these States become lawful

permanent residents each year, and immigrants “are vital to

the economic, civic, and social fabric of our states and city.”

Maj. Op. 35 (quotations omitted). These assertions cannot

justify the district court’s injunction. It is of course true that

DOE #1 V. TRUMP 83

immigrants are vital to the economic and cultural life of our

States and cities. But by this logic, any federal policy that

reduces immigration could be enjoined on that basis, giving

States and localities the power to negate federal immigration

policy. The acknowledged contributions that immigrants

make to our States are thus not grounds for enjoining the

Executive Branch from recalibrating immigration rules in line

with the President’s lawful policy goals. And it cannot be

that State or local governments that oppose a presidential

policy can have the policy enjoined through the commonplace

act of joining a State-led amicus brief.

C

For all the reasons I have set forth, the public interest also

strongly supports staying the injunction. Nken, 556 U.S.

at 434. As we have recognized, the government’s interests

and the public interest tend to merge since “responsible

public officials . . . have already considered” the public

interest in enacting the policy at issue. Golden Gate, 512 F.3d

at 1127. Our review of the public interest is thus

“constrained,” and “it is beyond our province to evaluate the

wisdom” of the Proclamation that the President chose to put

in effect. Id.

That is the result that the four stay factors require. The

majority, however, adds a new, unauthorized stay factor:

preservation of the status quo. Maj. Op. 35–36. The majority

reasons that the “public interest lies with maintaining the

status quo while the appeal is pending,” and that the status

quo is a world without the Proclamation. Id. at 36. The

majority is wrong on two levels. Circuit precedent is clear

that maintenance of a “status quo” is not among the factors

that courts consider in resolving a request to stay an

84 DOE #1 V. TRUMP

injunction. And even if it were, the majority is wrong on

what the status quo is.

In Golden Gate Restaurant Association v. City and

County of San Francisco, 512 F.3d 1112 (9th Cir. 2008), we

granted a motion to stay pending appeal a district court’s

injunction of a San Francisco ordinance that required

employers to make minimum healthcare expenditures to or on

behalf of their employees. The employers argued that the

City, in seeking a stay of the injunction and reinstitution of its

ordinance pending appeal, “must meet a higher standard,”

because “in [the employers’] view, a stay would change the

status quo.” Id. at 1116. We disagreed. We held that the

Supreme Court “did not include preservation of the status quo

among the factors regulating the issuance of a stay.” Id.

(quotations omitted). And we noted that “several of our sister

circuits, in reviewing preliminary injunctions enjoining

implementation of new legislation, have granted motions for

stays of those injunctions pending appeal without weighing

whether a stay would disturb or preserve the status quo.” Id.

at 1117.

Our decision in Golden Gate also demonstrates that the

majority misperceives the status quo, even if it were a

relevant consideration. As we explained in Golden Gate,

“granting a stay” of the injunction “would, in a real sense,

preserve rather than change the status quo,” because “[i]n the

absence of the district court injunction” the ordinance “would

now be part of the status quo.” Id. at 1116. The rules

governing stays should be no different for an ordinance that

requires employers to confer healthcare benefits (Golden

Gate) than a rule requiring immigrants to demonstrate they

will have qualifying health insurance (this case). As in

DOE #1 V. TRUMP 85

Golden Gate, in the absence of the district court’s injunction,

Proclamation No. 9945 would be part of the status quo.

The true status quo is thus not a judicially created one.

As I previously explained, “while the plaintiffs assume that

the status quo is a world without the Presidential

Proclamation, . . . the actual status quo is a legal environment

in which the President possesses ‘sweeping proclamation

power in § 1182(f),’ Hawaii, 138 S. Ct. at 2408 (quotations

omitted), and in which Proclamation No. 9945 is therefore

authorized.” Doe #1, 944 F.3d at 1229 (Bress, J., dissenting).

A stay “simply suspend[s] judicial alteration of the status

quo,” Nken, 556 U.S. at 429, which is all the government is

requesting here.

The majority is therefore wrong to assert that “[i]n the

government’s re-imagining of the status quo in this context,

this factor would always tip in the government’s favor,

effectively rendering the Court powerless to exercise its

discretion on this factor in such instances.” Maj. Op. 36.

That is not correct, because the government must meet the

traditional Nken factors to earn a stay. See Planned

Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

134 S. Ct. 506, 507 (2013) (Scalia, J., concurring) (explaining

that no “accepted standard” “require[s] a court to delay

enforcement of a state law that the court has determined is

likely constitutional on the ground that the law threatens

disruption of the status quo”) (quotations omitted). It is

instead the majority that is “re-imagining” the status quo and

creating a rule that, contrary to Golden Gate, would require

denying a stay of any injunction that blocks new policies

from going into effect, because anything new can always be

described as changing the status quo.

86 DOE #1 V. TRUMP

VI

We arrive at last at the scope of the injunction, which

applies nationwide and to persons around the world seeking

entry into the United States. My view, of course, is that there

should be no injunction in the first place. But the extreme

scope of the district court’s injunction presents new and

troubling issues of its own.

In a brief section, the court today blesses the district

court’s injunction based on a class certification order entered

months after the fact and the purported need for uniformity in

immigration policy. See Maj. Op. 37–40. The majority’s

approach—and the class certification decision it implicitly

endorses—are procedurally and substantively flawed.

Nationwide injunctions raise many fundamental questions

about the proper use of judicial power. Perhaps for that

reason, the Supreme Court has repeatedly stayed such

injunctions pending appeal. See Innovation Law Lab, 2020

WL 1161432, at *1; New York, 140 S. Ct. at 599; E. Bay

Sanctuary Covenant, 140 S. Ct. at 3; Int’l Refugee Assistance

Project, 138 S. Ct. at 542; Hawaii, 138 S. Ct. at 542. We

should have done that ourselves in this case. Today’s

decision unfortunately reflects yet another example of the

misuse of universal injunctions and the misunderstanding of

class certification on which they are so frequently premised.

A

Let’s begin with the sequence of events here, which

should be cause for concern. When the district court issued

its injunction in November 2019, no class had been certified

and any putative “class members” were not parties to the

case. See Smith v. Bayer Corp., 564 U.S. 299, 313–14

DOE #1 V. TRUMP 87

(2011). Under what I had thought was the law of our circuit,

nationwide relief is only appropriate where “necessary to give

prevailing parties the relief to which they are entitled.” Azar,

911 F.3d at 581 (emphasis in original and quotations

omitted); see also New York, 140 S. Ct. at 600 (Gorsuch, J.,

concurring) (“Equitable remedies, like remedies in general,

are meant to redress the injuries sustained by a particular

plaintiff in a particular lawsuit.”); Zepeda v. INS, 753 F.2d

719, 728 n.1 (9th Cir. 1983) (“Without a properly certified

class, a court cannot grant relief on a class-wide basis.”).

The district court’s injunction was thus vastly overbroad

when issued. At that time, any injunction could at most have

extended to the named plaintiffs, because no further

injunction would have been necessary to give these plaintiffs

relief. Azar, 911 F.3d at 581. As I thus wrote many months

ago when we were considering the government’s request for

temporary emergency relief pending appeal, the district

court’s universal injunction could not stand because it “short-

circuits the procedures for class certification by giving

thousands of persons not before the court the relief that the

class certification process is designed to evaluate.” Doe #1,

944 F.3d at 1228–29 (Bress, J., dissenting).

Now fast-forward many months later. Months after

briefing and argument in this court on the government’s

motion for stay pending appeal—and nearly half a year after

the district court first blocked the Proclamation from taking

effect nationwide—the district court issued its class

certification decision, certifying nationwide and worldwide

classes. Doe #1, 2020 WL 1689727, at *17. The majority

today relies on this later class certification decision to leave

in place the district court’s earlier universal injunction. Maj.

Op. 37.

88 DOE #1 V. TRUMP

This is quite unsettling. The majority’s reliance on the

district court’s recent class certification decision is a

concession that until a short time ago, there was no valid

basis for the district court to enjoin the Proclamation as to

anyone but the named plaintiffs. Maj. Op. 37 (“[T]he

injunction is appropriate at this juncture, whether or not it

was when originally issued.”). Yet when the issue was

presented to us four months ago, we refused to stay any

portion of the nationwide injunction. See Doe #1, 944 F.3d

at 1228–29 (Bress, J., dissenting). That, in turn, allowed the

district court to catch up to our deliberative process and issue

the class certification ruling that supposedly justifies a

universal injunction and without which the injunction could

not stand.

The problems with this course of events are innumerable.

Blocking a presidential policy for many months nationwide,

without justification, is no small thing. And by ratifying the

scope of the district court’s injunction, the majority invites

district courts to issue overbroad injunctions up front, only to

be followed some months later by the class certification

decisions that supposedly undergird them. This has it

backwards. The scope of a preliminary injunction should be

supported at the time it is issued, not months later and while

the injunction is on appeal. The inversion of operations that

the court tacitly approves today will only lead to path-

dependency in the district courts, creating hydraulic pressure

to certify a class in order to justify a previously issued

nationwide injunction that is now on appeal. That is not how

this process should work. Indeed, the government has not

even yet had the opportunity to appeal the district court’s

class certification ruling, which is now, per the majority’s

opinion, the linchpin of the district court’s injunction. See

Fed. R. Civ. P. 23(f).

DOE #1 V. TRUMP 89

The majority opinion treats the district court’s disordered

approach as “no harm, no foul” because this is the only case

challenging Proclamation No. 9945. The majority tells us

that “[n]o litigation challenging this Proclamation is pending

elsewhere, alleviating concerns occasionally associated with

nationwide injunctions,” namely, “that such injunctions

deprive other courts from offering diverse perspectives on the

legal issues while similar litigation is ongoing in multiple

forums.” Maj. Op. 38.

But why is there no other case challenging Proclamation

No. 9945? The most likely reason is because the district

court in this case blocked the Proclamation before it could

even take effect. With an all-encompassing injunction in

hand, no putative class member had any reason to bring suit

elsewhere. Far from showing that the district court’s

injunction poses no threat to the percolation of legal issues,

the absence of parallel litigation on Proclamation No. 9945

confirms that nationwide injunctions can, in fact, stymie the

development of legal challenges. See E. Bay Sanctuary

Covenant v. Barr, 934 F.3d 1026, 1029 (9th Cir. 2019); Azar,

911 F.3d at 583. All of this was made possible by the district

court’s decision to enjoin the Proclamation first and certify

classes many months after the fact.

B

The district court’s universal injunction fails not only as

a matter of procedure, but on substantive grounds as well.

Nationwide injunctions of federal policies are increasingly

common yet highly controversial. Some members of the

Supreme Court have raised important concerns about them.

See New York, 140 S. Ct. at 600–01 (Gorsuch, J., concurring);

Hawaii, 138 S. Ct. at 2425–29 (Thomas, J., concurring). This

90 DOE #1 V. TRUMP

case underscores that the problem with nationwide

injunctions often lies not merely in their equitable excess, see

New York, 140 S. Ct. at 600–01 (Gorsuch, J., concurring), but

with a failure to take seriously the restrictions on class

certification that Rule 23 imposes. The problem with many

nationwide injunctions, in other words, is that they are

premised on class certification orders that are themselves

infirm. That is the case here.

Class certification, “an exception to the usual rule that

litigation is conducted by and on behalf of the individual

named parties only,” is “proper only if the trial court is

satisfied, after a rigorous analysis, that the prerequisites of

Rule 23(a) have been satisfied.” Wal-Mart Stores, Inc. v.

Dukes, 564 U.S. 338, 349–51 (2011) (quotations omitted).

Most challenges to federal policies like the one before us seek

injunctive relief classes under Rule 23(b)(2). But such

classes are still subject to the strictures of Rule 23(a),

including the core requirement that a case present “questions

of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).

That provision requires “not the raising of common

‘questions’—even in droves—but rather, the capacity of a

class-wide proceeding to generate common answers apt to

drive the resolution of the litigation.” Wal-Mart, 564 U.S.

at 350 (emphasis in original and quotations omitted).

The majority states without analysis that the universal

injunction here “is also based on the certified subclasses,

which eliminates some concern that a nationwide injunction

is overly burdensome.” Maj. Op. 38–39. But even an initial

glance at the two classes the district court certified shows that

the class certification here was anything but proper. The first

certified class, consisting of persons in the United States

DOE #1 V. TRUMP 91

petitioning for a family member to receive an immigrant visa,

was defined as follows:

(1) U.S. Petitioner Subclass:

Individuals in the United States who currently

have or will have an approved or pending

petition to the United States government to

sponsor a noncitizen family member for an

immigrant visa; and whose sponsored family

member is subject to the Proclamation and

unable to demonstrate to a consular officer’s

satisfaction that he or she “will be covered by

approved health insurance” within 30 days

after entry or will be able “to pay for

reasonably foreseeable medical costs”; and

Doe #1, 2020 WL 1689727, at *17.

The central problem with this class definition is that

whether the Proclamation will have any effect on putative

This text is long and has been trimmed here. Open the source document for the complete record.