Doe v. Trump

Decision Date20 December 2019
Docket NumberNo. 19-36020,19-36020
Citation944 F.3d 1222
Parties John DOE #1; Juan Ramon Morales; Jane Doe #2; Iris Angelina Castro; Blake Doe; Brenda Villarruel; Latino Network; Jane Doe #3; Gabino Soriano Castellanos, Plaintiffs-Appellees, 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.
CourtU.S. Court of Appeals — Ninth Circuit

The government requests an emergency temporary stay of the district court's order preliminarily enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System , pending consideration of the motion for a stay pending appeal. The government also seeks a stay of the preliminary injunction pending appeal. The plaintiffs oppose both motions.

A temporary stay in this context (sometimes referred to as an administrative stay) is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal.

Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect. By this order we are expediting briefing and oral argument on the emergency motion and anticipate an expeditious issuance of a decision following argument.

Any government reply to plaintiffs' opposition to the motion for stay pending appeal is due December 23, 2019.

The parties are directed to appear for oral argument on the motion for stay pending appeal on Thursday, January 9, 2020, at 10:00 am in San Francisco, California. Each side will be allotted 20 minutes of argument time. The parties are encouraged to appear in person if possible. If any party wishes to appear by video, that party must notify Kwame Copeland, 415.355.7888, no later than Friday, January 3, 2020, and must coordinate with Mr. Copeland in making suitable arrangements for an appearance by video.

The opening brief and excerpts of record are due January 2, 2020; the answering brief is due January 30, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. This case will be assigned to the next available oral argument panel for a decision on the merits of the appeal.

BRESS, Circuit Judge, dissenting:

Before it could take effect, a district court in Oregon enjoined a Presidential Proclamation that placed a suspension and certain limitations on the entry of immigrants whom the President has determined will burden the American healthcare system. The district court refused to stay its nationwide injunction, and the government has now sought a stay of the district court's order pending appeal, as well as a temporary stay pending this Court's ruling on the underlying stay motion. Only the latter request is before us now. I would grant the temporary stay and so respectfully dissent from its denial.

Whatever one's views on the Presidential Proclamation as a matter of policy, the district court's decision is clearly wrong as a matter of law. In the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine—among the most brittle limbs in American constitutional law—and a reading of 8 U.S.C. § 1182(f) that the Supreme Court expressly rejected in Trump v. Hawaii , ––– U.S. ––––, 138 S. Ct. 2392, 201 L.Ed.2d 775 (2018). The district court's extraordinary injunction ignores governing precedent, invents unjustified restrictions on the political branches, and inserts the courts into the President's well-established constitutional and statutory prerogative to place limits on persons entering this country. The Proclamation concerns matters of great consequence and is understandably important to many people, but the law prevented the district court from doing what it did here.

Today's order is not a ruling on the government's underlying motion for a stay pending appeal, which I hope will ultimately be granted. But given the clear error below and irreparable resulting harms, a temporary stay is warranted. See 9th Cir. R. 27-3. We have granted such stays before, including in another case today. E.g. , Al Otro Lado, Inc. v. Wolf , No. 19-56417, 945 F.3d 1223, 2019 WL 7046371 (9th Cir. 2019) ; East Bay Sanctuary Covenant v. Barr , No. 19-16487 (9th Cir. Sept. 10, 2019), ECF No. 45; Innovation Law Lab v. Nielsen , No. 19-15716 (9th Cir. Apr. 12, 2019), ECF No. 6. We should have issued a temporary stay here as well. I therefore respectfully dissent.


This case arises from Presidential 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 . Pres. Proc. No. 9945, 84 Fed. Reg. 53,991 (2019). Citing 8 U.S.C. § 1182(f) and his authority under the Constitution, the President suspended and limited 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 53,992.

The Proclamation references data "show[ing] that lawful immigrants are about three times more likely than United States citizens to lack health insurance." Id. at 53,991. And it finds that healthcare providers and taxpayers bear a "substantial" burden on behalf of those "who lack health insurance or the ability to pay," so 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. The President also noted other financial and public health burdens that the uninsured can impose, including reliance on publicly funded benefit programs and overreliance on emergency room care, which in turn results in "delays for those who truly need emergency services." Id.

To remedy these problems, the Proclamation requires visa applicants to show that they will have healthcare coverage that would satisfy the Proclamation or show they are otherwise able to afford reasonably foreseeable medical expenses. Id. at 53,992. Under the Proclamation, an immigrant must "establish that he or she meets its requirements, to the satisfaction of a consular officer, before the adjudication and issuance of an immigrant visa." Id. at 53,993. It also provides that the "[t]he Secretary of State may establish standards and procedures governing such determinations." Id. By its terms, the Proclamation does not apply to immigrants who have already entered the United States pursuant to a visa or those "entering the United States through means other than immigrant visas." Id. at 53,992 –93. The Proclamation thus does not apply to "lawful permanent residents." Id. at 53,993. It also makes clear that "nothing in this proclamation shall be construed to affect 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 requires the preparation of an inter-agency report "within 180 days of [its] effective date"—and each year thereafter—on "the continued necessity of and any adjustments that may be warranted to the suspension and limitation on entry" imposed. Id. In the event "circumstances no longer warrant the continued effectiveness of the suspension and limitation on entry," the President is to be "immediately" advised. Id.

The Proclamation was set to take effect on November 3, 2019, id. at 53,994, but two days before, plaintiffs—a Multnomah County, Oregon advocacy organization and several United States citizens with family members who will allegedly be seeking immigrant visas—requested and received a temporary restraining order blocking enforcement of the Proclamation nationwide. On November 26, 2019, the district court granted plaintiffs' request for a nationwide preliminary injunction. Doe #1 v. Trump , ––– F.3d ––––, 2019 WL 6324560 (D. Or. Nov. 26, 2019).

The district court held that the statutory basis for the Proclamation— 8 U.S.C. § 1182(f) —was an unconstitutional delegation of legislative power because it "provides no guidance whatsoever for the exercise of discretion by the President." Doe #1 , ––– F.3d at ––––, 2019 WL 6324560 at *10. The district court also held that the Proclamation was "unconstitutional under separation of powers," because it "contravenes" the public charge provisions of the Immigration and Nationality Act. Id. at ––––, –––– – ––––, 2019 WL 6324560 at *12, 15–16. The district court declined to stay its order pending appeal. The government filed an emergency motion with this Court, seeking an immediate...

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7 cases
  • Doe v. Trump
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • December 31, 2020
    ...motions for an administrative stay and for a stay pending appeal, which this court denied by a divided vote. See Doe #1 v. Trump , 944 F.3d 1222, 1223 (9th Cir. 2019) ; Doe #1 v. Trump , 957 F.3d 1050, 1070 (9th Cir. 2020). We conclude that the Proclamation was within the President's statut......
  • Doe v. Trump
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • May 4, 2020
    ...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.IOn October 4, 201......
  • AL Otro Lado v. Wolf, Case No. 17-cv-02366-BAS-KSC
    • United States
    • U.S. District Court — Southern District of California
    • October 30, 2020
    ...on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal." Doe #1 v. Trump , 944 F.3d 1222, 1223 (9th Cir. 2019). Defendants argue that because the Ninth Circuit's administrative stay suspended the Court's "alteration of the status ......
  • Nat'l Urban League v. Ross
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 30, 2020
    ...on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal." Doe #1 v. Trump , 944 F.3d 1222, 1223 (9th Cir. 2019). Based on our preliminary review of the record, we conclude that the status quo would be seriously disrupted by an imme......
  • Request a trial to view additional results
2 books & journal articles
    • United States
    • Notre Dame Law Review Vol. 95 No. 5, May 2020
    • May 1, 2020
    ...the views of the U.S. Court of Appeals for the Ninth Circuit. (1) See Doe 1 v. Trump, 418 F. Supp. 3d 573 (D. Or.), stay denied, 944 F.3d 1222 (9th Cir. 2019); Washington v. U.S. Dep't of Homeland Sec., 408 F. Supp. 3d 1191 (E.D. Wash. 2019),stay granted sub nom. City & County of San Fr......
    • United States
    • Notre Dame Law Review Vol. 97 No. 5, May 2022
    • May 1, 2022
    ...administrative stay, see, for example, In re Abbott (Abbott II). 800 F. App'x 293, 295-96 (5th Cir. 2020) (per curiam); Doe #1 v. Trump, 944 F.3d 1222, 1223 (9th Cir. 2019); Brady v. NatT Football League, 638 F.3d 1004, 1005 (8th Cir. (20) See, e.g., William Baude, Foreword: The Supreme Cou......

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