Trump v. Int'l Refugee Assistance Project

• Decision Date: 26 June 2017
• Docket Number: Nos. 16–1436 (16A1190),16–1540 (16A1191).,s. 16–1436 (16A1190)
• Citation: 198 L.Ed.2d 643,137 S.Ct. 2080
• Parties: Donald J. TRUMP, President of the United States, et al. v. INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al. Donald J. Trump, President of the United States, et al. v. Hawaii, et al.
• Court: U.S. Supreme Court

137 S.Ct. 2080

198 L.Ed.2d 643

Donald J. TRUMP, President of the United States, et al.

v.INTERNATIONAL REFUGEE ASSISTANCE PROJECT, et al.

Donald J. Trump, President of the United States, et al.

v.Hawaii, et al.

Nos. 16–1436 (16A1190)

16–1540 (16A1191).

Supreme Court of the United States

June 26, 2017.

Jeffrey B. Wall, Acting Solicitor General, Department of Justice, Washington, DC, for petitioners.

Karen C. Tumlin, Nicholas Espíritu, Melissa S. Keaney, Esther Sung, Marielena Hincapié, National Immigration Law Center, Los Angeles, CA, Omar C. Jadwat, Lee Gelernt, Hina Shamsi, Hugh Handeyside, Sarah L. Mehta, Spencer E. Amdur, American Civil Liberties Union Foundation, New York, NY, Justin B. Cox, National Immigration Law Center, Atlanta, GA, David Rocah, Deborah A. Jeon, Sonia Kumar, Nicholas Taichi Steiner, American Civil Liberties Union Foundation of Maryland, Baltimore, MD, David Cole, Daniel Mach, Heather L. Weaver, American Civil Liberties Union Foundation, Washington, DC, Cecillia D. Wang, Cody H. Wofsy, American Civil Liberties Union Foundation, San Francisco, CA, for respondents.

PER CURIAM.

These cases involve challenges to Executive Order No. 13780, Protecting the Nation From Foreign Terrorist Entry Into the United States. The order alters practices concerning the entry of foreign nationals into the United States by, among other things, suspending entry of nationals from six designated countries for 90 days. Respondents challenged the order in two separate lawsuits. They obtained preliminary injunctions barring enforcement of several of its provisions, including the 90–day suspension of entry. The injunctions were upheld in large measure by the Courts of Appeals.

The Government filed separate petitions for certiorari, as well as applications to stay the preliminary injunctions entered by the lower courts. We grant the petitions for certiorari and grant the stay applications in part.

I

A

On January 27, 2017, President Donald J. Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed.Reg. 8977 (EO–1). EO–1 addressed policies and procedures relating to the entry of foreign nationals into this country. Among other directives, the order suspended entry of foreign nationals from seven countries identified as presenting heightened terrorism risks—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—for 90 days. § 3(c). Executive officials were instructed to review the adequacy of current practices relating to visa adjudications during this 90–day period. § 3(a). EO–1 also modified refugee policy, suspending the United States Refugee Admissions Program (USRAP) for 120 days and reducing the number of refugees eligible to be admitted to the United States during fiscal year 2017. §§ 5(a), (d).

EO–1 was immediately challenged in court. Just a week after the order was issued, a Federal District Court entered a nationwide temporary restraining order enjoining enforcement of several of its key provisions. Washington v. Trump, 2017 WL 462040 (W.D.Wash., Feb. 3, 2017). Six days later, the Court of Appeals for the Ninth Circuit denied the Government's emergency motion to stay the order pending appeal. Washington v. Trump, 847 F.3d 1151 (2017). Rather than continue to litigate EO–1, the Government announced that it would revoke the order and issue a new one.

A second order followed on March 6, 2017. See Protecting the Nation From Foreign Terrorist Entry Into the United States, Exec. Order No. 13780, 82 Fed.Reg. 13209 (EO–2). EO–2 describes "conditions in six of the ... countries" as to which EO–1 had suspended entry, stating that these conditions "demonstrate [that] nationals [of those countries] continue to present heightened risks to the security of the United States," § 1(e), and that "some of those who have entered the United States through our immigration system have proved to be threats to our national security," § 1(h).

Having identified these concerns, EO–2 sets out a series of directives patterned on those found in EO–1. Several are relevant here. First, EO–2 directs the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for United States visas. § 2(a). EO–2 directs the Secretary to report his findings to the President within 20 days of the order's "effective date," after which time those nations identified as deficient will be given 50 days to alter their practices. §§ 2(b), (d)-(e).

Second, EO–2 directs that entry of nationals from six of the seven countries designated in EO–1—Iran, Libya, Somalia, Sudan, Syria, and Yemen—be "suspended for 90 days from the effective date" of the order. § 2(c). EO–2 explains that this pause is necessary to ensure that dangerous individuals do not enter the United States while the Executive is working to establish "adequate standards ... to prevent infiltration by foreign terrorists"; in addition, suspending entry will "temporarily reduce investigative burdens on agencies" during the Secretary's 20–day review. Ibid. A separate section provides for case-by-case waivers of the entry bar. § 3(c).

Third, EO–2 suspends "decisions on applications for refugee status" and "travel of refugees into the United States under the USRAP" for 120 days following its effective date. § 6(a). During that period, the Secretary of State is instructed to review the adequacy of USRAP application and adjudication procedures and implement whatever additional procedures are necessary "to ensure that individuals seeking admission as refugees do not pose a threat" to national security. Ibid.

Fourth, citing the President's determination that "the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States," EO–2 "suspend[s] any entries in excess of that number" for this fiscal year. § 6(b).

Finally, § 14 of EO–2 establishes the order's effective date: March 16, 2017.

B

Respondents in these cases filed separate lawsuits challenging EO–2. As relevant, they argued that the order violates the Establishment Clause of the First Amendment because it was motivated not by concerns pertaining to national security, but by animus toward Islam. They further argued that EO–2 does not comply with certain provisions in the Immigration and Nationality Act (INA), 66 Stat. 187, as amended.

In No. 16–1436, a Federal District Court concluded that respondents were likely to succeed on their Establishment Clause claim with respect to § 2(c) of EO–2—the provision temporarily suspending entry from six countries—and entered a nationwide preliminary injunction barring the Government from enforcing § 2(c) against any foreign national seeking entry to the United States. International Refugee Assistance Project v. Trump, –––F.Supp.3d ––––, 2017 WL 1018235 (D.Md., Mar. 16, 2017) (IRAP ). The District Court in No. 16–1540—likewise relying on the Establishment Clause—entered a broader preliminary injunction: The court enjoined nationwide enforcement of all of §§ 2 and 6. Hawaii v. Trump, ––– F.Supp.3d ––––, 2017 WL 1167383 (D.Haw., Mar. 29, 2017) (entering preliminary injunction); ––– F.Supp.3d ––––, 2017 WL 1011673 (D.Haw., Mar. 15, 2017) (entering temporary restraining order). In addition to the § 2(c) suspension of entry, this injunction covered the § 6(a) suspension of refugee admissions, the § 6(b) reduction in the refugee cap, and the provisions in §§ 2 and 6 pertaining only to internal executive review.

These orders, entered before EO–2 went into effect, prevented the Government from initiating enforcement of the challenged provisions. The Government filed appeals in both cases.

The Court of Appeals for the Fourth Circuit ruled first. On May 25, over three dissenting votes, the en banc court issued a decision in IRAP that largely upheld the order enjoining enforcement of § 2(c). 857 F.3d 554. The majority determined that respondent John Doe # 1, a lawful permanent resident whose Iranian wife is seeking entry to the United States, was likely to succeed on the merits of his Establishment Clause claim. The majority concluded that the primary purpose of § 2(c) was religious, in violation of the First Amendment: A reasonable observer familiar with all the circumstances—including the predominantly Muslim character of the designated countries and statements made by President Trump during his Presidential campaign—would conclude that § 2(c) was motivated principally by a desire to exclude Muslims from the United States, not by considerations relating to national security. Having reached this conclusion, the court upheld the preliminary injunction prohibiting enforcement of § 2(c) against any foreign national seeking to enter this country.

On June 1, the Government filed a petition for certiorari seeking review of the Fourth Circuit's decision. It also filed applications seeking stays of both injunctions, including the Hawaii injunction still pending before the Ninth Circuit. In addition, the Government requested that this Court expedite the certiorari stage briefing. We accordingly directed respondents to file responses to the stay applications by June 12 and respondents in IRAP to file a brief in opposition to the Government's petition for certiorari by the same day.

Respondents' June 12 filings injected a new issue into the cases. In IRAP, respondents argued that the suspension of entry in § 2(c) would expire on June 14. Section 2(c), they reasoned, directs that entry "be suspended for 90 days from the effective date of" EO–2. The "effective date" of EO–2 was March 16. § 14. Although courts had enjoined portions of EO–2, they had not altered its effective date, nor so much as mentioned § 14. Thus, even though it had never been enforced, the entry suspension would expire 90 days from March 16: June 14. At that time, the dispute over § 2(c) would become moot. Brief in Opposition 13–14.

On the same day respondents filed, the Ninth Circuit ruled in H...