Lead Opinion
I.
A.
*234*235*236*245*246*247*248*249*250On January 27, 2017-seven days after taking the oath of office-President Donald J. Trump signed Executive Order 13,769, " Protecting the Nation From Foreign Terrorist Entry Into the United States" ("EO-1"),
Immediately before signing EO-1, President Trump remarked that it was "the 'Protection of the Nation from Terrorist Entry into the United States.' We all know what that means." IRAP v. Trump ,
Individuals, organizations, and states across the nation challenged EO-1 in federal court, and two federal courts issued injunctions enjoining the enforcement of EO-1. See Washington v. Trump , No. 17-141,
On March 6, 2017, President Trump issued Executive Order 13,780, which was given the same title as EO-1 and was scheduled to take effect on March 16, 2017.
Like its predecessor, EO-2 was soon challenged in multiple courts and preliminarily enjoined. See Hawai'i v. Trump ,
B.
On September 24, 2017, President Trump issued Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (the "Proclamation"),
The Proclamation indicated that the worldwide review ordered by EO-2 was complete and recited some of the review's processes and results. 82 Fed. Reg. at 45,162. The Government did not make the report part of the record for the Court's review, and it conceded during oral argument that the validity of the Proclamation rises or falls on the rationale presented within its four corners. Oral Arg. 32:30-33:00.
As part of the review, the Secretary of Homeland Security reportedly created a "baseline for the kinds of information required from foreign governments to support the United States Government's ability to confirm the identity of individuals seeking entry into the United States" or other benefits under the immigration laws and "to assess whether they are a security or public-safety threat." 82 Fed. Reg. at 45,162. Three categories of baseline criteria were used to determine the quality of a country's information sharing and are listed in § 1 of the Proclamation. Id. at 45,162 -63.
The first category involves "identity-management information," which the Proclamation states is "needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be." Id. at 45,162. Criteria in this category "include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports." Id.
The second category involves "national security and public-safety information," which the Proclamation states is needed to determine whether "persons who seek entry to this country pose national security or public-safety risks." Id. Criteria include "whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government's receipt of information about passengers and crew traveling to the United States." Id.
The third category involves a "national security and public-safety assessment." Id. at 45,162 -63. This category consists of various national security risk indicators, including "whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program ... that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States." Id.
Applying these baseline criteria, the Department of Homeland Security identified sixteen countries as "inadequate." Id. at 45,163. Thirty-one additional countries were classified as "at risk" of becoming inadequate. Id. Then followed a fifty-day engagement period during which all countries, including those not identified as "inadequate" or "at-risk," were encouraged to improve their information-sharing practices. Id.
Ultimately, the Secretary of Homeland Security recommended eight countries for *253entry restrictions, recommendations that President Trump adopted in full. The Secretary determined that Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen continued to be "inadequate" and recommended that nationals from these countries be subjected to entry restrictions. Id. Somalia did meet the baseline criteria but was nonetheless added to the list of countries subject to entry restrictions under the Proclamation because its "government's inability to effectively and consistently cooperate, combined with the terrorist threat that emanates from its territory, present special circumstances that warrant restrictions and limitations on the entry of its nationals into the United States." Id. at 45,164 -65, 45,167. Iraq did not meet the baseline criteria but was exempted from entry suspensions in light of "the close cooperative relationship between the United States and the democratically elected government of Iraq, the strong United States diplomatic presence in Iraq, the significant presence of United States forces in Iraq, and Iraq's commitment to combating the Islamic State of Iraq and Syria (ISIS)." Id. at 45,163. Instead, Iraqi nationals will face "additional scrutiny." Id. The Proclamation does not indicate whether any other countries that also failed the baseline were nonetheless not recommended for entry restrictions.
The Proclamation imposes different restrictions on immigrants and nonimmigrants from the eight countries, but all restrictions are indefinite. Id. at 45,164, 45,169. The Proclamation suspends immigration from Chad, Iran, Libya, North Korea, Somalia, Syria, and Yemen; it exempts Venezuela, which failed the baseline criteria, but includes Somalia, which passed. Id. at 45,165 -67. The Proclamation also restricts some or all categories of nonimmigrants from all countries except Somalia, whose nationals will instead undergo additional scrutiny. Id. Specifically, it bars the issuance of all nonimmigrant visas to Syrian and North Korean nationals; of all nonimmigrant visas except F, M, and J visas to Iranian nationals; and of B-1, B-2, and B-1/B-2 visas to Libyan, Yemeni, and Chadian nationals. Id. But because the Government has "alternative sources for obtaining information to verify the citizenship and identity of nationals from Venezuela," the Proclamation only suspends B-1, B-2, and B-1/B-2 visas for "government officials ... who are responsible for the identified inadequacies." Id. at 45,166.
The Proclamation only applies to foreign nationals who are outside the United States on the effective date and "do not have a valid visa" or "qualify for a visa or other valid travel document." Id. at 45,167. The Proclamation does allow for waivers, but they are discretionary and require the foreign national to prove that denying entry would cause "undue hardship," that entry would "not pose a threat to the national security or public safety of the United States," and that entry "would be in the national interest." Id. at 45,168. The Proclamation does not allow any categorical exemptions, even for the immediate relatives of American citizens. Id. at 45,168 -69.
The entry restrictions were effective immediately for foreign nationals who 1) were subject to EO-2's restrictions and 2) lack a credible claim of a bona fide relationship with a person or entity in the United States. Id. at 45,171. For all other affected persons, the Proclamation was scheduled to take effect on October 18, 2017. Id.
C.
As with EO-1 and EO-2, the Proclamation faced swift legal challenge within this circuit and in the Ninth Circuit.
*254Three separate lawsuits were brought or amended in the District Court for the District of Maryland and are now consolidated before us on appeal. One challenge was brought by the International Refugee Assistance Project (IRAP), HIAS, Inc., Middle East Studies Association (MESA), Arab-American Association of New York (AAANY), Yemeni-American Merchants Association (YAMA), John Doe Nos. 1 and 3-5, Jane Doe No. 2, Muhammed Meteab, Mohamad Mashta, Grannaz Amirjamshidi, Fakhri Ziaolhagh, Shapour Shirani, and Afsaneh Khazaeli (collectively, the "IRAP Plaintiffs"). A second was brought by the Iranian Alliances Across Borders (IAAB), the Iranian Students' Foundation (ISF), and Doe Nos. 1-6 (collectively, the "IAAB Plaintiffs"). And a third was brought by Eblal Zakzok, Sumaya Hamadmad, Fahed Muqbil, John Doe No. 1, and Jane Doe Nos. 2-3 (collectively, the "Zakzok Plaintiffs").
The three cases assert that the Proclamation and EO-2 violate some or all of the INA, the Establishment Clause of the First Amendment, the Free Speech and Free Association Clauses of the First Amendment, the equal protection and procedural due process components of the Due Process Clause of the Fifth Amendment, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act (APA).
The twenty-three individual Plaintiffs are all U.S. citizens or lawful permanent residents, and most of them have close family members who are nationals of the Designated Countries and who are in the process of applying for immigrant and nonimmigrant visas to the United States. Most of the individual Plaintiffs are also members of the Muslim faith, whether practicing or non-practicing. Three organizational Plaintiffs (IRAP, HIAS, and AAANY) "primarily provide services to clients," who are primarily either refugees or members of the Arab-American and Arab immigrant community. IRAP v. Trump ,
Each of these three separate cases names some or all of the following as Defendants: President Trump in his official capacity; the U.S. Department of Homeland Security (DHS) and Kirstjen M. Nielsen in her official capacity as Secretary of Homeland Security; the U.S. Department of State and Rex W. Tillerson in his official capacity as Secretary of State; the Office of the Director of National Intelligence (ODNI) and Dan Coats in his official capacity as Director of National Intelligence; Jefferson Beauregard Sessions, III in his official capacity as Attorney General; Kevin K. McAleenan in his official capacity as Acting Commissioner of the U.S. Customs and Border Protection; and L. Francis Cissna in his official capacity as Director of U.S. Citizenship and Immigration Services.
Plaintiffs moved to preliminarily enjoin the Proclamation in its entirety before it took effect. They claimed that the Proclamation violated the Establishment Clause's *255prohibition on disfavoring religion, exceeded the President's authority under
On December 4, 2017, the Supreme Court granted the Government's request for a complete stay pending appellate review of the two district courts' preliminary injunctions. Trump v. IRAP ,
On December 22, 2017, the Ninth Circuit affirmed the district court, concluding that the Proclamation likely exceeded the scope of the President's authority under § 1182(f), failed to comply with § 1182(f) 's procedural prerequisites, and violated § 1152(a)(1) 's prohibition on nationality-based discrimination. Hawai'i v. Trump ,
II.
We evaluate a district court's decision to grant a preliminary injunction *256under an abuse-of-discretion standard. Aggarao v. MOL Ship Mgmt. Co. ,
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to relief." Di Biase v. SPX Corp. ,
We turn first to the Plaintiffs' likelihood of success on the merits.
III.
"The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." Epperson v. Arkansas ,
The Plaintiffs allege that the Proclamation violates the Establishment Clause by disfavoring Muslims. We begin by considering (and rejecting) the Government's challenges to the justiciability of Plaintiffs' claim. We then turn to Plaintiffs' likelihood of succeeding on the merits. We find that Plaintiffs have met their high burden of demonstrating that the Proclamation's purported purpose is not "bona fide" under Mandel and therefore proceed to determine whether the Proclamation has a primarily secular purpose. Examining official statements from President Trump and other *257executive branch officials, along with the Proclamation itself, we conclude that the Proclamation is unconstitutionally tainted with animus toward Islam.
A.
"Concerns of justiciability go to the power of the federal courts to entertain disputes, and to the wisdom of their doing so." Renne v. Geary ,
1.
First, the Government claims that Plaintiffs have not properly alleged an injury-in-fact sufficient to satisfy Article III's standing requirement. We disagree. For many of the same reasons as in IRAP I , we find that many of the individual Plaintiffs and two of the organizational Plaintiffs have standing because they have sufficiently alleged personal contact with unconstitutional religious animus. See
Article III of the Constitution gives this Court jurisdiction only over "Cases" and "Controversies." U.S. Const. art. III, sec. 2, cl. 1. One element of a "case" or "controversy" is that the plaintiff have standing-that is, "such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination." Massachusetts v. EPA ,
*258Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. ,
We review de novo the district court's finding of standing. Peterson v. Nat'l Telecomms. & Info. Admin. ,
When evaluating standing, we "must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims." Cooksey v. Futrell ,
The "concept of injury for standing purposes is particularly elusive in Establishment Clause cases." Suhre v. Haywood Cty. ,
As a result, Establishment Clause injury-in-fact "may be shown in various ways," Ariz. Christian Sch. Tuition Org. v. Winn ,
The common thread among these different forms of cognizable legal injury is "personal contact" with the alleged establishment or disfavoring of religion. Suhre ,
The district court concluded that numerous individual Plaintiffs had "asserted specific, intangible injuries resulting from [their] personal contact with the alleged Establishment Clause violation." IRAP v. Trump , 265 F.Supp.3d at 600. We agree. The Plaintiffs have plausibly alleged that the Proclamation-which we must assume does unconstitutionally disfavor Islam, Cooksey ,
For example, IRAP Plaintiff John Doe No. 5 is a Muslim and U.S. citizen of Yemeni origin who is sponsoring his mother, also Yemeni, in her application for an immigrant visa. J.A. 573-75. His uncle is sponsoring his grandmother, who has Alzheimer's disease.
The Government argues that the district court erred by conflating the "injury-in-fact from an alleged Establishment Clause violation with the question whether the violation was of the individual's own Establishment Clause rights." First Cross-Appeal Br. 27 (hereinafter "First Br.") (emphasis omitted). We disagree. A cognizable Establishment Clause injury need "not include proof that particular religious freedoms are infringed," Schempp ,
Nor is this case similar to In re Navy Chaplaincy , in which the plaintiffs based their standing on hearing a " 'message' of religious preference."
Instead, many of the individual Plaintiffs here have alleged a violation of their own Establishment Clause rights, and they have presented evidence that the violation is particular to them: they have articulated specific feelings of "marginalization and exclusion," Moss ,
For the same reasons, we adopt and affirm the district court's finding that MESA and YAMA have associational standing to assert an Establishment Clause claim on behalf of their members. IRAP v. Trump , 265 F.Supp.3d at 601. Both have identified at least one member who has suffered feelings of marginalization and exclusion in his community and who has a close family member actively seeking an immigrant visa. J.A. 556 (MESA), 612-13 (YAMA). The interests are "germane to the organization's purpose" and there is no reason the individual members must participate in the lawsuit. Laidlaw ,
Unlike the plaintiffs in Valley Forge , Plaintiffs here have not "roam[ed] the country in search of governmental wrongdoing."
2.
Second, the Government argues that Plaintiffs' claim is not ripe until one of their relatives has been rejected for a visa and a waiver. During the pendency of this litigation, the mother-in-law of IAAB Plaintiff Doe No. 6 was denied both. Mot. Suppl. R. Ex. A, Dec. 22, 2017, ECF No. 162 ("This is to inform you that a consular officer found you ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645."). The Government's argument is therefore moot and by its own statements the claim of IAAB Plaintiff Doe No. 6 is ripe. First Br. 23 ("If any alien in whose entry a U.S. plaintiff has a cognizable interest is found otherwise eligible for a visa and denied a waiver, then that plaintiff can bring suit at that time[.]"). Nevertheless, we must also reject the Government's contention on the merits because it rests on a misapprehension of Plaintiffs' claim.
The doctrine of ripeness is designed "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Labs. v. Gardner ,
*263Ripeness here comes from the "imposition of the barrier," not the ultimate denial of a visa or waiver. Gratz v. Bollinger ,
Because the agencies have fully implemented the travel restrictions, the legality of those restrictions is "fit for judicial decision." Miller ,
We conclude that Plaintiffs' claim is ripe for review.
B.
In assessing Plaintiffs' Establishment Clause challenge, we first ask whether the proffered reason for the Proclamation is "facially legitimate and bona fide." Kleindienst v. Mandel ,
The Mandel standard, read through the lens of Justice Kennedy's opinion in Kerry v. Din ,
Assuming without deciding that the proffered purpose of the Proclamation is "facially legitimate," we turn to the question of whether it is "bona fide" as required by Mandel .
In the extraordinary case before us, resolution of that question presents little difficulty. Unlike Din and Mandel , in which the Government had a "bona fide factual basis" for its actions, Din ,
The President's own words-publicly stating a constitutionally impermissible reason for the Proclamation-distinguish this case from those in which courts have found that the Government had satisfied Mandel 's"bona fide" prong. In Bustamante v. Mukasey , for example, the court held that "the reason given by the consular official in support of the visa denial was *265... bona fide" because there was "no reason to believe that the consular official acted ... in anything other than good faith" in relying on information that the visa applicant "was involved in drug trafficking."
This, of course, does not mean that Plaintiffs have established that the Proclamation violates the Constitution. As we explained in IRAP I ,
Plaintiffs' challenge centers on the first prong. They maintain that the Government has failed to demonstrate that the Proclamation "has 'a secular legislative purpose' " that is "genuine, not a sham, and not merely secondary to a religious objective." McCreary ,
*266The Supreme Court has instructed that, to determine the primary purpose of a challenged government action, judges must view the challenged government action as a reasonable "objective observer." McCreary ,
The Government maintains that the Proclamation's facial neutrality establishes that it is "not intended to discriminate on the basis of religion." First Br. 43. But even if the Proclamation's "stated objective is religiously neutral," that cannot be "dispositive" as "the entire premise of our review under Lemon is that even facially neutral government actions can violate the Establishment Clause." IRAP I ,
Perhaps in implicit recognition of the rawness of the religious animus in the President's pre-election statements,
We need not do so because the President's inauguration did not herald a new day. Rather, only a week after taking office, President Trump issued EO-1, which banned the entry of citizens of six Muslim majority countries, provided exemptions for Christians, and lacked any asserted evidence indicating a genuine national security purpose. The very next day, January 28, 2017, Rudy Giuliani, an advisor to President Trump, explained that EO-1's purpose was to discriminate against Muslims. J.A. 808-10, 815-16. A reasonable observer could certainly conclude that in banning entry into the United States of *267180 million Muslims, approximately 10% of the world Muslim population, EO-1 was crafted to deliver, as Giuliani said, on President Trump's promise to "ban Muslim immigration to the United States." See J.A. 809, 820. This is particularly so given that every federal judge who considered the matter enjoined EO-1, finding that it likely violated the Constitution.
Shortly after issuance of these injunctions of EO-1, President Trump issued EO-2, which he and his advisors characterized as being substantially similar to EO-1. The President described EO-2 as "a watered down version of the first order." J.A. 779. Senior Policy Advisor Stephen Miller similarly explained that the changes to EO-2 were "mostly minor technical differences," and promised that they would result in "the same basic policy outcomes for the country." J.A. 756. Then-White House Press Secretary Sean Spicer confirmed that "[t]he principles of the [second] executive order remain the same." J.A. 168. We subsequently found EO-2 also impermissibly motivated by religion, and upheld an injunction of it. IRAP I ,
In the months that followed, the President continued to express his desire to return to "the original Travel Ban," rather than "the watered down, politically correct version" in EO-2. J.A. 791. On June 5, 2017, President Trump stated that the "Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court-& seek much tougher version!" and that "The Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to [the Supreme Court]."
The President also continued to express what any reasonable observer could view as general anti-Muslim bias. In an August 17, 2017, tweet, the President endorsed an apocryphal story involving General Pershing and a purported massacre of Muslims with bullets dipped in a pig's blood, advising people to "[s]tudy what General Pershing ... did to terrorists when caught. There was no more Radical Islamic Terror for 35 years!" J.A. 806. On November 29, 2017, President Trump retweeted three disturbing anti-Muslim videos entitled: "Muslim Destroys a Statue of Virgin Mary!" "Islamist mob pushes teenage boy off roof and beats him to death!" and "Muslim migrant beats up Dutch boy on crutches!" J.A. 1497-99. The three videos were originally tweeted by an extremist political party whose mission is to oppose "all alien and destructive politic or religious doctrines, including ... Islam." J.A. 1508. When asked about the three videos, President Trump's deputy press secretary Raj Shah responded by saying that the "President has been talking about these security issues for years now, from the campaign trail to the White House" and "the President has addressed these issues with the travel order that he issued earlier this year and the companion proclamation." J.A. 1502-03. The Government does not-and, indeed, cannot-dispute that the President made these statements. Instead, it argues that the "statements that occurred after the issuance of EO-2 do not reflect any religious animus" but reflect "the compelling secular goal of protecting national security from an amply-documented present threat." First Br. 52. We cannot agree.
*268Rather, an objective observer could conclude that the President's repeated statements convey the primary purpose of the Proclamation-to exclude Muslims from the United States. In fact, it is hard to imagine how an objective observer could come to any other conclusion when the President's own deputy press secretary made this connection express: he explained that President Trump tweets extremist anti-Muslim videos as part of his broader concerns about "security," which he has "addressed ... with ... the proclamation." J.A. 1502-03.
The Government correctly points out that the President's past actions cannot "forever taint" his future actions. See McCreary ,
The Government unconvincingly claims that the substantive differences between the Proclamation and EO-1 and EO-2 reflect the elimination of any anti-Muslim bias. To be sure, the Proclamation does differ in some respects from the previous Executive Orders. For example, the Proclamation bans citizens from two non-majority Muslim countries, North Korea and Venezuela. Although the Proclamation affects only very few persons from those countries as opposed to the many tens of thousands from the other Muslim-majority countries, the Government asserts that "[t]he inclusion of those [two] non-Muslim-majority countries in the Proclamation underscores [a] religion-neutral purpose." First Br. 50. Again, we disagree. In McCreary , the Supreme Court found that despite the court-ordered addition of secular texts to a twice-challenged display of the Ten Commandments in state courthouses, "[n]o reasonable observer could swallow the claim that the Counties had cast off the objective so unmistakable in the earlier displays."
Nor does the "months-long" "multi-agency review,"
Like the district court, we do not note "the apparent disconnect between the identified problem[s]" in the review and "the broad, nationality-based travel ban to evaluate the merits" of the Proclamation as a policy. See IRAP v. Trump , 265 F.Supp.3d at 626-27. Rather, we do so "only to assess whether the Proclamation persuasively establishes that the primary purpose of the travel ban is no longer religious animus." See id. The contradiction between what the Proclamation says -that it merely reflects the results of a religion-neutral review-and what it does "raises serious doubts" about the Proclamation's proffered purpose, and undermines the Government's argument that its multi-agency review cured any earlier impermissible religious purpose. See The Florida Star v. B.J.F. ,
In sum, the face of the Proclamation, read in the context of President Trump's official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective.
Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on "religious animosity." Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah ,
We have long recognized that "[o]ur jurisprudence in this area is of necessity one of line-drawing, of determining at what point [an individual's] rights of religious freedom are infringed by the State." Lee v. Weisman ,
IV.
Having held that Plaintiffs are likely to succeed on the merits of their Establishment Clause claim, we now consider the three remaining Winter factors. See
A.
As the district court rightly states, irreparable harm occurs when the threatened injury impairs the court's ability to grant an effective remedy. IRAP v. Trump , 265 F.Supp.3d at 629 (citing 11A Charles Alan Wright, et al., Federal Practice and Procedure § 2948.1 (3d ed. 1998) ). The Supreme Court has held that the irreparable harm must be "likely," not merely possible. Winter ,
As the Supreme Court has stated, the "loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns ,
We further agree with the district court that the individual Plaintiffs whose family members are categorically rendered ineligible for visas have demonstrated a likelihood of irreparable harm. Prolonged and indefinite separation of parents, children, siblings, and partners create not only temporary feelings of anxiety but also lasting strains on the most basic human relationships cultivated through shared time and experience. IRAP Plaintiff John Doe No. 5's grandmother, a Yemeni national, has Alzheimer's disease and is currently living in uncertain conditions in Jordan. J.A. 574. Zakzok Plaintiff Fahed Muqbil has a one-year-old daughter who, due to severe birth defects, has been undergoing multiple life-threatening surgeries in the United States without her mother, a Yemeni national, by her side. J.A. 1244. IAAB Plaintiff Doe No. 6's wife is separated from her family and will be "completely devastated" if her mother, an Iranian national, is unable to visit her in the United States. J.A. 1175. These injuries are "not compensable with monetary damages." See Hawai'i v. Trump ,
We therefore affirm the district court's determination that Plaintiffs have sufficiently demonstrated a likelihood of irreparable harm.
B.
We now balance the harms likely to be suffered by the parties. We agree with the district court that the balance of equities weighs in favor of Plaintiffs, who are likely to continue suffering a violation of their Establishment Clause rights (the combination of religious marginalization with familial separation), rather than the Government, which is not likely to be harmed by an injunction against the enforcement of a likely unconstitutional Proclamation. IRAP v. Trump , 265 F.Supp.3d at 630.
While the Government asserts a national security interest behind the Proclamation, the district court did not abuse its discretion in concluding that the Government has not shown that national security cannot be maintained without the unprecedented multi-nation ban. Id. For one, the injunction does not result in the entry of any particular individual. It simply precludes the use of a nationality-based ban. Foreign nationals from the Designated Countries must still proceed through the standard individualized vetting process and prove that they are not inadmissible. See
However, as the district court recognized, we are obligated to follow the Supreme Court's rationale in partially staying the injunction of EO-2. See IRAP v. Trump , 265 F.Supp.3d at 630 (citing Trump ,
C.
Finally, we consider whether Plaintiffs have shown that the injunction is in the public interest. We conclude that it cannot be in the public interest for the President to violate the Establishment Clause. We also agree with the district court and the Ninth Circuit that the unlawfully issued Proclamation has a much broader deleterious effect on the public interest than the simple fact that certain foreign nationals are excluded. IRAP v. Trump , 265 F.Supp.3d at 630-31 ; Hawai'i v. Trump ,
On a human level, the Proclamation's invisible yet impenetrable barrier denies the possibility of a complete, intact family to tens of thousands of Americans. J.A. 868-69. On an economic level, the Proclamation inhibits the normal flow of information, ideas, resources, and talent between *272the Designated Countries and our schools, hospitals, and businesses.
For those reasons, we affirm the district court's conclusion that enjoining the unlawful Proclamation is in the public interest.
V.
Finally, we review for abuse of discretion the district court's grant of a nationwide injunction against enforcement of § 2 of the Proclamation, excepting North Korea and Venezuela. Aggarao ,
In its opinion granting the preliminary injunction, the district court narrowed the scope of its nationwide injunction to apply to only those individuals "who have a credible claim of a bona fide relationship with a person or entity in the United States." IRAP v. Trump , 265 F.Supp.3d at 631 (quoting Trump ,
The district court's injunction adopts the scope laid out by the Supreme Court-with one potential exception. IRAP v. Trump , 265 F.Supp.3d at 631. The district court concluded that "clients of IRAP and HIAS, and those similarly situated, are not covered by the injunction absent a separate bona fide relationship as defined above." Id. In support, the district court referenced the Supreme Court's stay of the Ninth Circuit's decision "that a refugee with a formal sponsorship assurance from a U.S. resettlement agency" categorically had "a bona fide connection to the United States." Id. ; see Hawai'i v. Trump ,
With this caveat, we conclude that the district court did not abuse its discretion in enjoining §§ 2(a)-(c), (e), and (g)-(h) of the Proclamation, narrowed by the Supreme Court's bona fide relationship standard. IRAP v. Trump , 265 F.Supp.3d at 631-32 (citing Trump ,
For the same reasons as in IRAP I , we conclude that the district court did not abuse its discretion in adopting a nationwide injunction.
Finally, we have adopted the bona fide relationship limitation only because this case comes to us in an interlocutory posture.
*274We are reviewing the entry of a preliminary injunction and so must balance the equities, including the Government's interest in enforcing the Proclamation. See Trump ,
VI.
For all of these reasons, we affirm the preliminary injunction granted by the district court. In light of the Supreme Court's order staying this injunction pending "disposition of the Government's petition for a writ of certiorari, if such writ is sought," we stay our decision today pending the Supreme Court's decision. Trump v. IRAP , 138 S.Ct. at 542.
AFFIRMED
GREGORY, Chief Judge, with whom Judge Wynn joins as to Part I, concurring:
The statutory question is this: whether the President has the congressionally delegated authority to enact modern-day analogs of the repealed Chinese Exclusion Act or nationality-based quota system. In light of legislative and executive practice spanning centuries, I conclude that he does not.
I.
Plaintiffs argue that, in issuing the Proclamation,
The Government makes several arguments to the contrary. First, it claims that Congress has stripped the Court of subject-matter jurisdiction to hear the claims. Second, it argues that the doctrine of consular nonreviewability bars judicial review. Third, it argues that Plaintiffs lack Article III standing to sue. And fourth, it argues that Plaintiffs do not have a cause of action to bring their statutory claims, under the APA or otherwise. I address these arguments in turn and conclude that the statutory claims are justiciable.
A.
Subject to limitations imposed by Congress, the Constitution extends the federal judicial power "to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties Made, or which shall be made, under their Authority." U.S. Const. art. III, § 2, cl. 1. Since 1875, Congress has provided the federal courts with original jurisdiction over civil claims "arising under the Constitution, laws, or treaties of the United States."
In their motion for a preliminary injunction, Plaintiffs allege that the Proclamation violates the Establishment Clause and the INA. These questions are on the face of Plaintiffs' Complaints, substantial, and central to their claims. See 13D Charles Alan Wright, et al., Federal Practice and Procedure § 3562 (3d ed. Supp. 2017). Thus, Plaintiffs have squarely presented two questions that "aris[e] under the Constitution" and "laws ... of the United States."
But, even where a plaintiff squarely presents federal questions, a district court may still lack jurisdiction to resolve the dispute if Congress has precluded judicial review. See, e.g. , Elgin v. Dep't of Treasury ,
The Government argues that the INA forecloses any judicial review of Plaintiffs' statutory claims. First Cross-Appeal Br. 19-20 (hereinafter "First Br."). In support, it points to two discreet statutory provisions:
The first, § 236(f), does not actually strip federal courts of anything. Instead, it denies prospective plaintiffs a cause of action to challenge individual decisions by consular officers in granting and denying visas.
The second provision that the Government cites, § 1201(i), strips federal courts of jurisdiction to review decisions by a consular officer or the Secretary of State to "revoke" a visa that has already been issued.
That the Government cannot point to an INA provision clearly stripping this Court of jurisdiction over Plaintiffs' statutory claims is not surprising. One need only glance through the INA to see that Congress has taken a careful and narrow approach to jurisdiction, precluding judicial review over only discrete exercises of executive authority. See, e.g. , McNary ,
Congress's precision is exemplified by
In the more than sixty-five years since § 1182(f) was written, and despite more than five dozen amendments to § 1182 overall, Congress has never precluded judicial review of executive actions taken pursuant to the President's authority under § 1182(f). Nor did Congress preclude judicial review in the almost quarter-century since the Supreme Court reviewed an executive order issued under § 1182(f). See Sale v. Haitian Ctrs. Council, Inc. ,
I thus conclude that this Court has subject-matter jurisdiction to hear Plaintiffs' statutory claims: Plaintiffs have sued under § 1331 for (among other things) violation of the INA, the Government has appealed from an interlocutory order granting Plaintiffs a preliminary injunction, see
B.
The Government next argues that the doctrine of consular nonreviewability precludes this Court from reviewing any statutory challenge to the President's authority to exclude classes of noncitizens, no matter how unlawful that decision may be. No case from either this Court or the Supreme Court supports such a sweeping proposition.
The consular nonreviewability doctrine provides that, absent congressional authorization, courts lack jurisdiction to review a consular officer's decision to grant or deny a visa. Saavedra Bruno v. Albright ,
*278Lem Moon Sing v. United States ,
But Plaintiffs do not ask this Court to second-guess Congress's policy decisions, nor do they ask this Court to review the substance of the Executive Branch's exercise of discretion in enforcing those policy decisions. The Complaints do not challenge any individual visa denials or ask the district court to order the Executive Branch to grant any visas. Rather, Plaintiffs claim that the President exceeded the authority that Congress delegated to him in § 1182(f) and § 1185(a)(1), and that in issuing the Proclamation, the President supplanted Congress's immigration policy with his own. The consular nonreviewability doctrine-applicable only to individualized visa determinations and designed to protect Congress's plenary power in immigration matters-plainly does not bar review here. See Saavedra Bruno ,
The Supreme Court's decision in United States ex rel. Knauff v. Shaughnessy , on which the Government heavily relies, further illustrates the doctrine's purpose and inapplicability to this case. See
But this principle does not apply when determining whether the Executive Branch has complied with the Legislative Branch's commands. Like Plaintiffs here, the foreign national in Knauff also argued that her exclusion was inconsistent with congressional intent-that the Executive Branch had frustrated rather than implemented the policy embodied in another statute, the War Brides Act. Id. at 545,
Knauff thus highlights the distinction between a challenge to the substance of the executive's decision and a challenge to the authority of the executive to issue that decision. Whereas the former invites courts to controvert the political branches' joint decisions regarding whom to exclude and therefore falls within the doctrine of consular nonreviewability, see
Finally, the Government contends that even if the consular nonreviewability doctrine does not apply to the President's decision to categorically exclude a class of foreign nationals, the rationale behind the doctrine does. But that rationale-that the political branches, not the judiciary, set and implement immigration policy-applies only where the executive acts within the scope of its delegated authority. See Nishimura Ekiu ,
For these reasons, I conclude that the doctrine of consular nonreviewability does not bar Plaintiffs' statutory claims.
C.
I turn next to the Government's argument that the Plaintiffs lack standing. The district court determined that numerous individual and organizational plaintiffs have standing to make out an INA claim. The Government has challenged only the imminence of Plaintiffs' injuries, but the Court has "an obligation to assure ourselves of litigants' standing under Article III." DaimlerChrysler Corp. v. Cuno ,
The Supreme Court has articulated three requirements to make out Article III standing. The plaintiff "must show (1) it has suffered an 'injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. ,
Plaintiffs must have standing for every claim, but the same injury can provide standing for multiple claims and one party with standing is sufficient to satisfy Article III. Bostic v. Schaefer ,
I turn first to the individual Plaintiffs. Twelve individual Plaintiffs "have immediate family members who are nationals of the Designated Countries and currently in the process of securing a visa to come to the United States as immigrants."
These sixteen individual Plaintiffs express fear and apprehension at the possibility of prolonged separation from their close family members. E.g. , J.A. 587-89 (IRAP Plaintiff John Doe No. 4, stating that being apart from his Iranian wife is "excruciatingly difficult" and is adversely affecting his professional and personal life); J.A. 1174-76 (IAAB Plaintiff Doe No. 6, stating that he has been "extremely anxious, sad, and worried" since the Proclamation and fears that his wife will be "completely devastated" if her family members are barred from receiving nonimmigrant visas); J.A. 1244-48 (Zakzok Plaintiff Fahed Muqbil, stating that he was "devastated" when he heard about the Proclamation and is "very worried at the thought of my wife being permanently banned from rejoining me and our young daughter in the United States," in large part because his daughter has had several life-threatening surgeries for birth defects and cannot travel to see her mother).
As of December 8, 2017, the relevant agencies have fully implemented the entry restrictions laid out in the Proclamation. Dep't of State, New Court Order on Presidential Proclamation (Dec. 4, 2017) (saved as ECF opinion attachment 1) (hereinafter "State Department Statement"); see also DHS, Fact Sheet: The President's Proclamation on Enhancing Vetting Capabilities *281and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats (Sept. 24, 2017) (saved as ECF opinion attachment 2) (hereinafter "DHS Fact Sheet"). Even though the visa applications for Plaintiffs' relatives are still pending, Plaintiffs' relatives are now categorically ineligible for visas.
I further conclude that the fifteen other individual Plaintiffs, whose relatives have not received visa decisions, also have standing. First, the Government does not contest that an executive action "prolong[ing] the separation of immediate family members" constitutes injury-in-fact sufficient to satisfy Article III. Legal Assistance for Vietnamese Asylum Seekers v. Dep't of State, Bureau of Consular Affairs (LAVAS ),
In addition, the district court concluded that MESA and YAMA had associational standing because both "identify at least one individual member who is a U.S. citizen or [lawful permanent resident] seeking to secure an immigrant visa for a close relative from one of the Designated Countries." IRAP v. Trump , 265 F.Supp.3d at 599. I agree and adopt the district court's reasoning. Both organizations have at least one member who has or will imminently sponsor a close family member from one of the Designated Countries for an immigrant visa. J.A. 556 (MESA), 612-13 (YAMA). The interests raised by their claims are "germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Laidlaw ,
Finally, the district court held that IRAP, MESA, and IAAB had organizational standing because the Proclamation injures their proprietary and organizational interests. IRAP v. Trump , 265 F.Supp.3d at 597-98. I again agree with the district court and adopt its reasoning. For example, the Proclamation prevents an IRAP staff member who is Syrian from traveling to New York for IRAP's annual week-long retreat, which is critical to its organizational and strategic activities. J.A. 577-78. The Proclamation also prevents many of MESA's members (many of whom are nationals of the Designated Countries and live abroad) from attending its annual meeting, the revenue from which amounts to half of MESA's annual budget. J.A. 87-90, 555-60. And the Proclamation will prevent nationals from the Designated Countries from attending and speaking at IAAB's International Conference, scheduled for April 2018, and already has prevented foreign nationals from attending its overnight camps. J.A. 1152-54. These constitute concrete, actual injuries to each organization's activities, caused by the Proclamation and redressible by this Court, see Larson ,
In sum, although only one Plaintiff need allege facts sufficient to establish Article III standing, Bostic ,
D.
Finally, the Government claims that Plaintiffs lack a cause of action to sue under the INA. A "cause of action"-often referred to synonymously (and confusingly) as a "private right of action"-is a term of art "employed specifically to determine who may judicially enforce" certain "statutory rights or obligations." Davis v. Passman ,
I conclude that Plaintiffs have a cause of action under the APA to challenge the final action of the agencies now implementing the Proclamation. I also conclude that this Court has inherent authority to review allegations that executive action exceeds a legislatively delegated grant of authority.
1.
The APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court."
The Government challenges Plaintiffs' ability to invoke the APA on four grounds: First, the Proclamation is not agency action; second, whatever agency action may exist is not final; third, Plaintiffs are not "adversely affected or aggrieved" within the meaning of the INA; and fourth, whatever agency action may exist is committed to agency discretion by law.
First, the Plaintiffs have properly challenged agency action. The APA applies only to agency action, which "includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."
*284The Government correctly points out that the "President is not an agency within the meaning" of the APA and therefore cannot take "agency action." See Franklin v. Massachusetts ,
Here, Plaintiffs have sued some or all of the following agencies and agency heads: DHS and Kirstjen M. Nielsen in her official capacity as Secretary of Homeland Security; the State Department and Rex Tillerson in his official capacity as Secretary of State; ODNI and Daniel R. Coats in his official capacity as Director of National Intelligence; Jefferson Beauregard Sessions, III in his official capacity as Attorney General; Kevin K. McAleenan in his official capacity as Acting Commissioner of CBP; and L. Francis Cissna in his official capacity as Director of USCIS. These agencies and agency heads have fully implemented, as of December 8, 2017, the entry restrictions laid out in the Proclamation. State Department Statement, supra ("Per the Supreme Court's orders, those restrictions will be implemented fully, in accordance with the Presidential Proclamation, around the world, beginning December 8 at open of business, local time."); see also DHS Fact Sheet, supra . As a result, nationals of the Designated Countries will no longer be issued some or all types of immigrant, nonimmigrant, and diversity visas. State Department Statement, supra ; see also IRAP v. Trump , 265 F.Supp.3d a t 608.
Functionally, therefore, the relevant agencies are implementing the Proclamation by categorically rejecting visa applications from nationals in the Designated Countries who do not meet the high standard for a waiver not applicable to other nationalities. See id. (stating that to receive a waiver, individual must show that "issuance [of a visa] is in the national interest, the applicant poses no national security or public safety threat to the United States, and denial of the visa would cause undue hardship"); e.g. , Mot. Suppl. R. Ex. A, Dec. 22, 2017, ECF No. 162 ("This is to inform you that a consular officer found you ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645."). This categorical refusal to issue visas satisfies the APA's definition of a sanction: it is the "withholding" of "beneficial" "action on the application[s]" for immigrant and nonimmigrant visas submitted by foreign nationals of the Designated Counties.
*285
Second, the Plaintiffs have alleged final agency action. The APA limits judicial review of agency actions with no other adequate remedy in court to final agency decisions.
There is no talismanic measurement of final agency action. Rather, the Court looks to whether the action "mark[s] the consummation of the agency's decisionmaking process" and whether the action is "one by which rights or obligations have been determined[ ] or from which legal consequences will flow." Bennett v. Spear ,
In implementing the Proclamation's travel restrictions, the agencies have determined the "rights or obligations" of foreign nationals, with immediate "legal consequences." Bennett ,
The Government's argument that Plaintiffs' relatives must be denied visas and waivers before they can sue under the APA is a red herring. Plaintiffs do not seek a substantive declaration that their relatives will be issued visas and admitted to the country-the issuance of visas and the admissibility of foreign nationals is subject to the many limitations established by Congress in the INA and to the discretion of consular officials.
Third, Plaintiffs have satisfied the APA's injury requirement. Plaintiffs can only sue under the APA if they are "adversely affected or aggrieved by agency action within the meaning of a relevant statute."
The Government argues that Plaintiffs fall outside of § 702 because the INA does not confer on them "any legally cognizable rights" nor "protect any interest of organizations that merely provide services to aliens seeking entry." First Br. 24. But the APA does not "require any indication of congressional purpose to benefit the would-be plaintiff." Patchak , 567 U.S. at 225,
Finally, the challenged agency actions are not "committed to agency discretion by law." See
*287Heckler v. Chaney ,
To the extent that the agencies are drawing their authority directly from the INA, Mot. Suppl. R. Ex. A, Dec. 22, 2017, ECF No. 162 ("This is to inform you that a consular officer found you ineligible for a visa under Section 212(f) of the Immigration and Nationality Act, pursuant to Presidential Proclamation 9645."), I also find that § 1182(f) does not confer unreviewable discretion. Congress knew how to commit decisions in the INA to unreviewable agency discretion-and it chose not to do so in § 1182(f). Compare
2.
This Court also has inherent authority to review allegations that an executive action has exceeded the Constitution or a congressional grant of authority. See, e.g. , Armstrong v. Exceptional Child Ctr., Inc. , --- U.S. ----,
Judicial review of executive action alleged to exceed statutory grants of authority is inherent in the separation of powers established by the Founders. In Chadha , the Supreme Court struck down a provision of the INA giving one branch of Congress a legislative veto over individual Executive Branch decisions to keep deportable foreign nationals in the country.
Moreover, the Supreme Court has recognized a "strong presumption" that "Congress intends judicial review of administrative action." E.g. , McNary ,
As a result, the Supreme Court and other courts have repeatedly recognized the judiciary's role in reviewing executive action for compliance with statutory authority. In American School of Magnetic Healing v. McAnnulty , for example, the Supreme Court held that the Postmaster General had exceeded his statutory authority by prohibiting the delivery of mail to a certain business.
Plaintiffs' challenge to the Proclamation falls within this "familiar judicial exercise." Zivotofsky ex rel. Zivotofsky v. Clinton ,
The Supreme Court's exercise of jurisdiction in Sale ,
Simply put, the Court does not consider the "wisdom of the policy choices" made by the President. Sale ,
II.
The Proclamation has no historical precedent. The President interprets the INA in a way that no other administration has in the statute's sixty-five year existence and attempts to enact, by decree, the type of immigration policy traditionally reserved for Congress. I would hold that the Proclamation *290exceeds the scope of authority delegated by the INA and that it was unlawfully issued.
The principles at work here are simple and undeniable. First, our Constitution vests power over migration in Congress. See, e.g. , Gibbons v. Ogden ,
Here, Congress has not clearly delegated the expansive authority that the President seeks, and the powers Congress did delegate contain restraints that have been exceeded in this case. In addition, the Proclamation, as it applies to immigrant visas, directly contravenes the INA's prohibition on nationality discrimination. See
A.
As the text of Article I and centuries of legislative practice and judicial precedent make clear, the Constitution vests Congress, not the President, with the power to set immigration policy. Article I of the Constitution vests Congress with plenary power to control the movement of people across the nation's borders. As Chief Justice John Marshall wrote for the Supreme Court in 1824, that authority expressly derives from Congress's "power to regulate commerce with foreign nations." U.S. Const. art. I, § 8, cls. 1 & 3 ; Ogden ,
As a result, Congress controls the classification of aliens and their exclusion, notwithstanding the President's separate foreign affairs powers.
Once Congress has formulated such policies, the President then enforces removals and exclusions "according to the regulations so established." Fong ,
B.
Given that power over immigration policy primarily resides with Congress, the next question is whether the INA clearly delegates the sweeping power to enact the Proclamation in this case. The Proclamation invokes two INA provisions- § 1182(f) and § 1185(a)(1). Section 1182(f) facially authorizes the President to suspend or impose restrictions on "the entry of all aliens or any class of aliens" into the United States if he finds that their entry "would be detrimental" to our national interests.
The Government argues that these provisions authorize the President to halt any and all foreign travel into the country at any time, from any and all countries, for any reason he decrees, for however long he wishes, notwithstanding any other provision of law. This interpretation of § 1182(f) and § 1185(a)(1) requires a breathtaking delegation to the President of virtually unconstrained power not only to depart from Congress's priorities but to dramatically reorganize the domestic affairs of broad swathes of Americans.
Courts require a clear statement of congressional intent before finding that Congress has ceded decisions of great economic and political significance, including in the immigration arena. King v. Burwell , --- U.S. ----,
To be sure, delegations of power to the President, rather than an agency, may raise lesser separation-of-powers concerns because the President undoubtedly decides questions of great significance as the chief executive. But the President does not, within the confines of the Constitution, *292decide major questions that are within the legislative function. Indeed, conferral of unrestrained discretion on the President can be particularly dangerous for several reasons.
First, the President is not subject to the procedures that constrain legislative and administrative decision-making. Congress, given its bicameral structure, provides a different kind of safeguard against government overreach. See The Federalist No. 70 (Alexander Hamilton) (explaining that Congress is "best adapted to deliberation and wisdom, and best calculated to conciliate the confidence of the people and to secure their privileges and interests"). The legislative process is then less prone to "the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions." The Federalist No. 62; see also Hamdan v. Rumsfeld ,
Second, rescinding the President's discretion, once granted, is not a simple task. It almost certainly requires a veto-proof supermajority-even though a simple majority of Congress may have delegated the authority. Therefore, courts should not readily assume that a co-equal branch of government has ceded control over questions of monumental significance. Rather, Congress must effectuate broad delegations with statements of commensurate clarity.
Sections 1182(f) and 1185(a)(1) do not contain that requisite clarity. As the Supreme Court has held, "oftentimes the 'meaning-or ambiguity-of certain words or phrases may only become evident when placed in context.' " Burwell , 135 S.Ct. at 2489 (quoting Brown & Williamson ,
If, as the Government argues, § 1182(f) and § 1185(a)(1) confer discretion to halt any and all travel, one would expect the provisions' text to describe the President's power in the broadest terms. But such language is noticeably absent. The INA, including § 1182, and other statutes are replete with examples of far broader delegations of discretion. Section 1182(a)(9)(B)(v), for instance, commits an immigration waiver decision to the "sole discretion" and "satisfaction" of the Attorney General. See also, e.g. ,
For those reasons, I conclude that § 1182(f) and § 1185(a)(1) do not clearly confer the broad authority that the Government claims.
C.
Having determined that the grant of authority under § 1182(f) and § 1185(a)(1)
*293is not as broad as the Government claims, the next question is the actual scope of the powers they delegate-and whether the Proclamation falls within that scope. The proper construction of seemingly broad delegations of unrestrained discretion must be informed by the constitutional avoidance canon and its specific subspecies, the nondelegation canon. Indus. Union Dep't, AFL-CIO v. Am. Petroleum Inst. ,
The constitutional concern here is that the Government's interpretation of the INA effectuates "such a 'sweeping delegation of legislative power' that it might be unconstitutional." See Indus. Union Dep't, AFL-CIO ,
When broad power is delegated with few or no constraints, the risk of an unconstitutional delegation is at its peak. Whitman v. Am. Trucking Ass'ns ,
First, the Government's construction confers unlimited discretion on the President. Not only are his decisions unreviewable, there are in fact no substantive limitations-all that is required is an order reciting "the interests of the United States." First Br. 30. And even that may be unnecessary because, according to the Government, § 1185(a) does not require findings. To be sure, courts are more tolerant of broad delegations involving foreign affairs. See United States v. Curtiss-Wright Exp. Corp. ,
*294Zemel ,
Second, the authority that § 1182(f) and § 1185(a)(1) purportedly delegate is exceedingly broad in scope. At bottom, the "Government argues that the President, at any time and under any circumstances, could bar entry of all aliens from any country" indefinitely. Hawai'i v. Trump ,
The vast discretion that the INA supposedly delegates to the President and the vast scope of that delegation thus raise nondelegation concerns to their zenith. The Proclamation invokes such broad authority to drastically affect private rights and affairs that it approximates lawmaking. See Chadha ,
Three examples illustrate this point. First, classifying foreign nationals and categorically regulating their entry are legislative acts. See, e.g. , Fiallo ,
Second, the Government's interpretation of § 1182(f) and § 1185(a)(1) authorizes the President to prevent significant portions of the INA from having any effect, indefinitely, unless contrary legislation is enacted-an action that bears similarities to the unconstitutional line item veto. As discussed infra , the 1965 amendments to the INA prohibit a nationality-based immigration policy and provide for individualized visa-eligibility determinations for family members. See, e.g. ,
Finally, the type of presidential power claimed here is similar to what the Supreme Court and Justice Jackson cautioned against and rejected in Youngstown . There, the Supreme Court held that the President could not, by invoking his commander-in-chief powers, resolve labor disputes through seizure of property because Congress was vested with the power to do so and had previously rejected similar legislation.
In sum, the President claims the authority to indefinitely set his own immigration and travel policies with respect to every foreign nation and class of immigrants, under any circumstances, exigent or not, that he sees fit. Such authority is dangerously similar to lawmaking and intrudes on Congress's plenary power over immigration. While courts rarely strike down laws on nondelegation grounds, courts "vindicate the constitutional principle against delegation of legislative authority" by "narrowly construing grants of policymaking power." Cass R. Sunstein, Interpreting Statutes in the Regulatory State ,
1.
I turn first to § 1182(f) and conclude that its proper construction avoids serious constitutional concerns. Read in light of statutory context and historical practice, § 1182(f) is a gap-filling provision that empowers the President to exclude (1) foreign nationals whose individual conduct or affiliation makes their entry harmful to national interests for reasons unanticipated by Congress and (2) foreign nationals in response to a foreign-affairs or national-security exigency. For the reasons below, I conclude that the Proclamation, with the exception of Venezuela, does not fill any gaps left by Congress and that Plaintiffs are likely to prevail in showing that it exceeds the authority granted by § 1182(f).
a.
The structure of § 1182 reveals limitations on the President's discretion. Section 1182(f) is a general provision that follows a list of individual-specific bars to entry, all of which are carefully cabined and defined. See Panama Ref. Co. v. Ryan ,
Section 1182 begins, in subsection (a), by defining "classes of aliens" ineligible for visas or admission in great detail. Specific subsections bar immigrants who pose security risks, have engaged in "terrorist activities," or are otherwise associated with terrorist organizations.
Under ordinary principles of statutory construction, "the specific governs the general." RadLAX Gateway Hotel, LLC v. Amalgamated Bank ,
*297Our nation's immigration law, and § 1182 in particular, is the quintessential comprehensive scheme. Arizona , 567 U.S. at 395,
Therefore, for circumstances already addressed by the specific provisions of § 1182, the President must implement Congress's express directives, according to the procedures set forth by statute. See D. Ginsberg & Sons v. Popkin ,
b.
How other Presidents have understood and used § 1182(f) further confirms its intended gap-filling function. Section 1182(f) has been in place since 1952, spanning twelve presidencies. See Immigration & Nationality Act of 1952, Pub. L. No. 82-414, § 212(e),
When faced with seemingly broad grants of discretion, courts routinely use historical practice to define the contours of the delegation. See, e.g. , Dulles ,
Looking to historical practice here, it becomes clear that prior orders issued under § 1182(f) 's seemingly broad terms have exclusively responded to Congress's institutional limitations. See J.W. Hampton, Jr., & Co. v. United States ,
First, Congress cannot reasonably anticipate and enumerate every type of individual conduct that is harmful to national interests. Accordingly, the vast majority of § 1182(f) orders have targeted individual conduct similar to but beyond what Congress has expressly provided in § 1182. See Kate M. Manuel, Cong. Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief 6-12 (2017). For instance, President Obama suspended the entry of individuals who have "contributed" to the lack of peace and stability in Libya, individuals who have specified connections with the North Korean government, individuals who have engaged in certain conduct with Iran and Syria (such as facilitating deceptive transactions), and individuals who have undermined democratic institutions and human rights in Venezuela.
Second, Congress must necessarily confer some discretion on the President to act in response to exigent circumstances. Only two executive actions have imposed broad bans, and both occurred in response to foreign affairs crises. Even then, both fell well-short of banning all immigrants. President Carter authorized the revocation and denial of Iranian visas after the Iranian government took U.S. embassy officials hostage, but exempted (1) asylum seekers, (2) Iranians closely related to an American, and (3) Iranians in need of immediate medical attention.
These two orders involved quintessential exigencies that Congress did not foresee and that required immediate reprisals. Given that the President can act much more rapidly in responding to foreign crises, congressional delegation of discretion under those circumstances is necessary to serve important sovereign interests. And, when there is an exigency, courts tolerate broader delegations as "inherent necessities of ... governmental co-ordination." See Hampton ,
Changes to the INA and the evolution of § 1182(f) 's usage over time confirm that § 1182(f) serves a gap-filling function. Indeed, history shows that § 1182(f) grew to encompass exigent circumstances as those gaps manifested over the past century. After World War II, Congress expressly authorized the President to impose, during declared national emergencies, additional entry requirements beyond what Congress had otherwise prescribed. Immigration & Nationality Act of 1952 § 215(a), 66 Stat. at 190 (codified as amended at
In sum, judicial precedent disfavors dramatic expansions of authority delegated under old statutes. Even if § 1182(f) authorizes additional entry restrictions beyond those specified by Congress, courts should confine that delegated authority, as did the Supreme Court in Dulles , to two categories: (1) foreign nationals whose personal conduct or characteristics make their entry harmful to national interests for reasons unanticipated by Congress and (2) foreign nationals barred in response to a demonstrated exigency. See
c.
Having determined that § 1182(f) is a gap-filling function, the question is whether the Proclamation fits within the two identified gaps. Because Congress has already legislated in response to the Proclamation's stated purposes, the President, in the absence of exigent circumstances, has *300exceeded his residual power in this case, except as to restrictions on Venezuelan officials.
As discussed supra , the first gap consists of individuals whose personal conduct or circumstance renders their entry harmful to U.S. interests for reasons unanticipated by Congress. The restrictions against Venezuela are the only ones that fall within this category. The Proclamation does not exclude Venezuelan nationals en masse but instead sanctions individuals "who are responsible for the identified inadequacies," such as officials who refuse to receive deportees. 82 Fed. Reg. at 45,166. Like the overwhelming majority of past exclusionary orders, these restrictions fit comfortably within the practice of excluding persons on the basis of their individual conduct or circumstance. But the blanket nationality ban on the remaining countries cannot fit within this category.
The second gap consists of individuals and classes of individuals barred in response to exigent circumstances. In this case, there is no apparent exigency justifying immediate, categorical exclusion of foreign nationals from the Designated Countries.
In sum, the President attempts to do more than what Congress has specifically authorized, in response to scenarios that Congress has already foreseen and addressed, without complying with the detailed framework and priorities that Congress has prescribed, in the absence of exigent circumstances justifying expansive executive authority. It makes little sense for Congress to delineate clear circumstances and processes for excluding individuals but then delegate, ambiguously, to the President the power to exclude people en masse without the same procedural rigor unless there is an exigent need for immediate action. See Gonzales v. Oregon ,
2.
I now examine whether the Proclamation is authorized by § 1185(a)(1). Section 1185(a)(1) makes it "unlawful" "for any alien to depart from or enter ... the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe."
As with § 1182(f), the discretion § 1185(a)(1) grants is informed by its statutory context. See Burwell , 135 S.Ct. at 2489. Section 1185(a)(1) is a general provision, whereas subsections (2)-(7) specifically prohibit fraud, tampering, and other misuse of travel documents and applications. Other subsections within § 1185 also pertain to possession of travel documents. Read in context, § 1185(a)(1) is at best a residual provision that enables the President to issue reasonable rules pertaining to travel documents and related administrative processes-similar to its adjacent subsections. A provision regulating fraudulent acts and other tampering with travel procedures clearly does not confer the discretion to shut down travel en masse . See MCI ,
The legislative evolution of § 1185 confirms that the President's authority is limited to reasonable regulation of travel documents to prevent fraud and other abuse by individuals. In 1952, § 1185 was titled "Travel Control of Aliens and Citizens in Time of War or National Emergency." Immigration & Nationality Act of 1952 § 215. In 1978, Congress specifically amended § 1185 by renaming it, "Travel Documentation of Aliens and Citizens." Foreign Relations Authorization Act § 707(e).
As the change in title would suggest, Congress made several changes in 1978 that narrowed the type of restrictions that the President could impose but expanded it temporally to encompass peacetime. The 1952 version of § 1185(a)(1) had provided that
When the United States is at war or during the existence of any national emergency proclaimed by the President ... and the President shall find that the interests of the United States require that restrictions and prohibitions in addition to those provided otherwise than by this section be imposed upon the *302departure of persons from and their entry into the United States, and shall make public proclamation thereof, it shall, until otherwise ordered by the President or the Congress, be unlawful-
(1) for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe....
Immigration & Nationality Act of 1952 § 215. The 1978 amendment removed several requirements that cabined when the President could act, including requirements that he use § 1185 only during the existence of war or national emergency in the national interest and pursuant to a public proclamation. Foreign Relations Authorization Act § 707. But, at the same time, Congress stripped the President of authority to impose "restrictions and prohibitions in addition to those provided ... by this section."
Section 1185(a)(1) also is not as broad as the Government claims because it applies to foreign nationals both inside and outside the United States. Reading § 1185(a)(1) expansively would raise not only nondelegation concerns but also questions under the Fifth Amendment.
Section 1185(a)(1) is properly read as authorizing only "reasonable" travel requirements to preserve the integrity of entry and departure documents and procedures. Congress, in making it "unlawful" for individuals to violate the President's "reasonable" processing requirements, must have presupposed the ability of would-be travelers to reasonably comply with them.
Categorically stripping individuals of their right to travel based on criteria outside of their control, such as nationality, cannot be said to be a reasonable administrative requirement. See Aptheker v. Sec'y of State ,
*303Although some of the baseline criteria employed by the global review are arguably related to preserving the integrity of travel documents and procedures, the Proclamation does not exclude individuals who, for example, failed to obtain an electronic passport. Instead, nationality is the determinative criterion. For instance, according to the Proclamation, Somalia meets the criteria for information sharing and electronic passports but is nonetheless subject to entry restrictions. 82 Fed. Reg. at 45,165 -67. Furthermore, as many as eighty-six countries fail to use electronic passports, the overwhelming majority of which are not targeted by the Proclamation.
In sum, I decline to read § 1185(a)(1) as conferring unbridled discretion on the President to restrict travel on the basis of nationality. Such an expansive interpretation is inconsistent with the text, structure, and history of the statute and may authorize infringement of protected constitutional rights. See Dulles ,
D.
Next, Plaintiffs argue in the alternative that the President's authority under § 1182(f) and § 1185(a)(1) is independently constrained by § 1152(a)(1) 's prohibition against nationality discrimination in the issuance of visas. Section 1152(a)(1), provides that "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race ... nationality, place of birth, or place of residence."
Congress enacted § 1152(a)(1) as part of a comprehensive revision of the INA "at the height of the civil rights movement." IRAP v. Trump ,
Because § 1152(a)(1) is a more specific and later enacted provision, its prohibition on nationality discrimination controls and limits whatever authority the President has under § 1182(f) and § 1185(a)(1). See RadLAX , 566 U.S. at 648,
The Proclamation, as it applies to immigrants, directly contravenes § 1152(a)(1) and the fundamental principles of equality that it embodies. Despite the Government's efforts to distinguish denial of entry and visa eligibility from visa issuance, the Proclamation operates by categorically denying the issuance of visas. The Proclamation repeatedly refers to visa issuance, and agencies now implement its mandate by categorically denying visas. E.g. , 82 Fed. Reg. at 45,167 ; see also State Department Statement, supra . As the district court rightly concluded, "the Proclamation erases the line between the issuance of a visa and entry into the United States." IRAP v. Trump , 265 F.Supp.3d at 608. Simply stated, the Government cannot evade § 1152(a)(1) simply by characterizing the ban as affecting "entry" or "eligibility." The relevant inquiry is whether the administration is refusing to issue visas based on nationality, and the answer is indisputably in the affirmative.
That Presidents Carter and Reagan have previously imposed entry restrictions on Iran and Cuba respectively does not suggest a contrary interpretation. Presidents Carter and Reagan did not impose blanket restrictions on all immigrants from Iran and Cuba-they exempted, among others, close family members, who were the central focus of the 1965 amendments to the INA.
Thus, I conclude that Plaintiffs are likely to succeed in showing that the Proclamation operates in contravention of § 1152(a)(1) 's prohibition against nationality discrimination in the issuance of visas.
III.
Absent statutory authorization, there remains the possibility that the President could have enacted the ban using his Article II powers alone. However, unilateral executive action under these circumstances would raise serious separation-of-powers questions. See generally, Youngstown ,
Courts apply the well-known Youngstown framework to assess executive power.
The first Youngstown category applies when the President and Congress are acting in concert. Here, his "authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate."
The second Youngstown category applies when Congress is in equipoise. "When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority.... Therefore, congressional inertia, indifference or quiescence may sometimes ... enable, if not invite, measures on independent presidential responsibility."
Finally, the third Youngstown category applies when the President is contravening congressional intent. "When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject."
*306Because the Proclamation consists of several subparts that impose different restrictions on different countries, the Youngstown framework must be applied at a more granular level than simply evaluating the nature of the Proclamation as a whole.
Because the Proclamation and the INA distinguish between immigrants and nonimmigrants, this analysis must do so as well. As to foreign nationals from the Designated Countries (minus Venezuela) seeking family reunification or other immigrant visas, the Proclamation violates the express will of Congress and therefore falls squarely within Youngstown category three. As discussed supra , § 1152(a)(1) prohibits nationality discrimination in the issuance of immigrant visas. Other provisions of the INA also not only authorize but prioritize family reunification. The President's order, by creating unequal barriers to entry based on nationality and by failing to exempt family members of Americans, directly contravenes Congress's immigration priorities and foreign policy judgment. Under Youngstown category three, courts cannot uphold the President's unilateral action unless Congress has no power in the immigration arena-which is emphatically not the law. See, e.g. , Arizona , 567 U.S. at 409-10,
As to foreign nationals from the seven remaining countries seeking nonimmigrant visas, the Proclamation violates the implied will of Congress and likewise falls within category three. As discussed supra , § 1182(a) and § 1187(a) set forth Congress's specific policy responses to individuals who pose certain risks or who come from countries that fail the Proclamation's baseline criteria. Those are the exclusive responses permitted by Congress absent unanticipated circumstances justifying departure. Since § 1182(f) is a limited gap-filling provision, the INA implicitly confines the circumstances under which that power may be invoked. Since the Proclamation's restrictions on nonimmigrant visas do not fill any gap unaddressed by Congress, they are within Youngstown category three and are of dubious constitutionality.
Indeed, even if the Proclamation's exclusion of nonimmigrants were to fall under Youngstown category two, it is not clear that the Proclamation's restrictions are within the President's Article II powers. No President has ever asserted such unilateral power. Past nationality-related restrictions have invariably relied on statutory authority-even as they affected far fewer nations and fewer individuals and involved a foreign-relations exigency. See Manuel, supra . Presidents Carter and Reagan, for instance, acted in response to foreign affairs that triggered the height of their treaty and diplomat powers. There simply is no precedent for enacting a ban of this size and scope, against this many countries, without either seeking legislative approval or clearly invoking a core Article II power. Indeed, § 1182 and several *307statutes authorizing exclusions during war or emergency would be entirely redundant if the President already had inherent powers. See, e.g. , Immigration & Nationality Act of 1952 § 215; Pub. L. No. 65-154, ch. 81,
Knauff , relied on extensively by the Government and Judge Niemeyer, is not to the contrary. Although Knauff spoke of the President's inherent powers in broad terms, it is inapposite for several reasons. First, the executive was lawfully exercising delegated authority under the wartime precursor to what is now § 1185(a). See Knauff ,
As the Supreme Court held in Youngstown , the President cannot aggrandize his office and absorb powers that the Constitution has vested in Congress simply by applying a foreign-relations gloss. See
I therefore decline to decide whether the President could enact the Proclamation without statutory authorization because that claim is not squarely raised on the Proclamation's face. Instead, I construe the Proclamation's invocation of the INA to mean that the President thought legislative authority was necessary to enact the ban. Because the Proclamation exceeded *308the delegated powers on which it relies, I conclude that Plaintiffs are likely to succeed in showing that the Proclamation, in large part, is unlawful.
IV.
For all of these reasons, I conclude that Plaintiffs have shown a likelihood of success in their statutory claims. In enacting the Proclamation, the President has exceeded the scope of his authority under § 1182(f) and § 1185(a)(1) and violated § 1152(a). Because the President lacks authority under the INA to issue a nationality-based restriction absent exigency, I conclude that the Proclamation should be enjoined as to § 2(a)-(e) and (g)-(h).
BARBARA MILANO KEENAN, Circuit Judge, with whom Judge Wynn joins as to Part I, Judge Diaz joins as to Part I and Part II.A.2, and Judge Thacker joins in full, concurring:
I concur in the majority opinion's analysis of the plaintiffs' constitutional claim and the majority opinion's holding that the Proclamation likely violates the Establishment Clause. I write separately because, in my view,
I.
A.
I begin by addressing the justiciability issues surrounding the plaintiffs' statutory claims.
*309IRAP Plaintiff John Doe #4 is an American citizen who filed a visa application for his Iranian national wife. His wife completed her interview, but her request for a visa is still pending. The terms of the Proclamation will at a minimum delay, if not permanently bar, John Doe #4's wife from gaining entry into the United States. The likelihood of this occurring is neither speculative nor remote. Accordingly, I conclude that IRAP Plaintiff John Doe #4 has established the existence of an injury-in-fact that is fairly traceable to the Proclamation and is likely to be redressed by a favorable decision in this case. See Bostic v. Schaefer ,
B.
I also conclude that the doctrine known as "consular nonreviewability" does not preclude our consideration of the Proclamation. Under this doctrine, "it is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien." U.S. ex rel. Knauff v.Shaughnessy ,
Here, however, the plaintiffs do not challenge individual visa decisions made by consular officers. Instead, the plaintiffs are challenging whether the President's action issuing the Proclamation falls within the authority Congress delegated to the President in the INA. This issue whether the President has acted lawfully pursuant to delegated statutory authority presents a question of statutory construction. Certainly, the Executive has broad discretion over the exclusion of aliens, but it is our "duty ... to say where t[he] statutory and constitutional boundaries" to the Executive's discretion lie. Abourezk v. Reagan ,
In addition, neither Knauff nor Saavedra Bruno precludes this Court from reviewing the Proclamation. Those decisions relate only to particular individual aliens being denied entry into the United States. Knauff ,
C.
I also conclude that the plaintiffs have a cause of action under the Administrative Procedure Act (APA),
The APA provides judicial review to a party who is "adversely affected or aggrieved by agency action within the meaning of a relevant statute."
Although the APA does not provide for judicial review of the President's own actions, see Franklin v. Massachusetts ,
The Proclamation already is being enforced by these federal agencies, which enforcement carries direct consequences for the plaintiffs and similarly situated individuals. Thus, these agency actions are "final" and are reviewable under the APA. Bennett v. Spear ,
In addition, I am not persuaded that the APA precludes review of the Proclamation on the ground that the Proclamation is an action "committed to agency discretion by law."
The plaintiffs are "adversely affected or aggrieved by agency action within the meaning of a relevant statute," namely, the INA.
The interests asserted in the plaintiffs' challenge to the Proclamation fall within the zone of interests protected by the INA. The plaintiffs assert that they will be separated from family members if the Proclamation is permitted to take effect. When Congress enacted the INA, it "implemented the underlying intention of our immigration laws regarding the preservation of the family unit." Legal Assistance for Vietnamese Asylum Seekers ,
And, more generally, I conclude that the judiciary also has inherent authority to review presidential actions that are challenged by those affected as having exceeded *311the scope of the statutory authority given to the President. See Hawaii v. Trump ,
The plaintiffs ask us to do what the judiciary routinely has done since the Republic's founding, namely, to determine whether a particular presidential action has surpassed the boundaries placed on presidential authority by Congress and by the Constitution. I therefore find that the plaintiffs' statutory claims are justiciable and proceed to consider the merits of those claims.
II.
We review a district court's decision to grant a preliminary injunction under an abuse-of-discretion standard. Aggarao v. MOL Ship Mgmt. Co. ,
A preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that [a] plaintiff is entitled to such relief." Real Truth About Obama, Inc. v. FEC ,
A.
I first address whether the plaintiffs are entitled to preliminary relief based on the likelihood that the Proclamation does not comport with the INA, namely, that the Proclamation fails to comply with certain threshold requirements under Section 1182(f), and whether the Proclamation conflicts with other provisions of the INA.
1.
Under Article I of the Constitution, the power to make immigration laws "is entrusted exclusively to Congress." Galvan v. Press ,
In the Immigration and Nationality Act of 1952, Pub. L. No. 82-414,
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.
The plaintiffs claim that the Proclamation is unlawful because it exceeds the scope of Congress' grant of authority to the President under Section 1182(f). This claim raises initial questions regarding (1) whether the statute permits a wide-sweeping ban of unlimited duration and (2) whether the Proclamation bans entry based on permissible "classes of aliens."
In interpreting a statute, courts first must determine whether the meaning of the statute is ascertainable through the text alone. See United States v. Ide ,
a.
Although the language of Section 1182(f) provides broad discretion to the President to suspend the entry of aliens or classes of aliens, that discretion is not limitless. See United States v. Witkovich ,
Because the INA does not define the term "suspend," we accord the term its ordinary or "common usage." See United States v. Murphy ,
Moreover, Section 1182(f) refers to the President's authority to issue restrictions on the entry of aliens for a singular "period" of time. The word "period" implies "a stated interval of time commonly thought of in terms of years, months, and days." United States v. Updike ,
The Proclamation, however, does not contain language reflecting any temporal limitation. As drafted, the Proclamation permits the President to ban entry of these millions of aliens on a permanent basis. Nevertheless, the government urges us to place the most benign construction on the President's present exercise of authority, and effectively asks us to assume that the President will amend the ban when his concerns are addressed by the identified countries. Yet that is not the task before us. We do not look at the narrowest possible view of what action the President may choose to take under the Proclamation, or assume that he will not exercise all the power he has claimed in that document. Instead, we must answer *314the question whether the statute permits the President to exercise fully the power he has asserted within the four corners of the Proclamation.
The absence of any temporal limitation in the Proclamation directly departs from the framework of EO-2, which was written so that the nationality ban would take effect for only a limited period of 90 days. Exec. Order No. 13,780,
Section 4(a) of the Proclamation contemplates periodic reviews by various high-level cabinet officers every 180 days to allow those officers to advise the President whether any of the restrictions imposed by Section 2 "should be continued, modified, terminated, or supplemented." 82 Fed. Reg. at 45,169. However, this periodic review process does not transform the indefinite ban of more than 150 million nationals into merely a temporary interruption of the INA's carefully crafted statutory scheme. Rather, the language of the Proclamation permits the ban on entry of the designated nationals to remain permanently in force, effectively rewriting the INA in material respects. Accordingly, I conclude that the Proclamation is inconsistent with the plain language of Section 1182(f), in which Congress granted the President authority to "suspend" entry of aliens for a "period" of time.
b.
Separately, I consider the authority of the President under Section 1182(f) to suspend the entry of "any class of aliens."
Section 1182(f) appears within a statutory section that contains a robust, detailed list of "[c]lasses of aliens" which Congress deemed ineligible for admission to the United States. See
When considered in this broader context of other provisions of Section 1182, paragraph (f) authorizes the President to exclude any additional "class of aliens" whose entry would be detrimental to the interests of the United States. The Proclamation, however, restricts affiliated nationals grouped in classes of countries, depending *315on each country's conditions relating to the criteria of identity-management, information-sharing, and terrorist activity. 82 Fed. Reg. at 45,165-45,167. By focusing on country conditions, the Proclamation, on an indefinite basis, substitutes its own classification system in place of Congress' considered judgment as reflected in the INA's carefully delineated statutory framework.
My analysis might be different had Congress manifested a clear intent in Section 1182(f) to give the President the authority to override other provisions in the INA. Certain other provisions in the INA, as well as other bodies of statutory law, contain language of that nature demonstrating an expansive legislative intent. See, e.g. , 8 U.S.C. § 1182f ("Notwithstanding any other provision of law and except as provided in subsection (b)" (emphasis added) );
c.
My conclusion that the President exceeded the scope of his authority under Section 1182(f) is not altered by the government's reliance on the only two prior orders issued by presidents barring entry of individuals based on national origin. The first was issued by President Jimmy Carter, and the second was issued by President Ronald Reagan. Of primary importance, neither of these orders was challenged as exceeding the scope of the President's authority under Section 1182(f). Further, both orders are readily distinguishable from the present Proclamation.
President Carter's order, issued in 1979, authorized executive branch officials to prescribe limits on rules governing the entry of Iranian nationals holding nonimmigrant visas during the Iran Hostage Crisis. Exec. Order No. 12,172,
In 1986, President Reagan restricted Cuban nationals from entering the United States as immigrants in response to a discrete diplomatic crisis in which Cuba had breached an immigration agreement after lesser sanctions had failed. Proclamation No. 5517,
These two prior orders also were far narrower in their terms than the unlimited interpretation of Section 1182(f) the government offers to support the Proclamation. Moreover, not one of the prior 43 proclamations issued under Section 1182(f) banned entry by nationals of more than one country at the same time based on their nationality. See Kate M. Manuel, Cong. Research Serv., R 44743, Executive Authority to Exclude Aliens: In Brief 6-10 (2017). And, 42 of these 43 orders issued prior to the present Proclamation excluded aliens who themselves engaged in or were involved in conduct harmful to the national security or some other interest of the United States.
Ultimately, however, whatever scope these past executive actions may have had is not dispositive of the issue before us. Under any articulation of limits contemplated by Congress in enacting Section 1182(f), this Proclamation exceeds the President's authority under the INA by effectively rewriting for an unlimited duration the INA's criteria for admissibility of aliens.
2.
I also conclude that the President failed to make the necessary findings to support his invocation of authority under Section 1182(f). Section 1182(f) requires that the President "find[ ]" that entry of the aliens in question "would be detrimental to the interests of the United States."
The principal reason cited in the Proclamation for banning nearly every national of seven of the eight countries is that those countries lack adequate "identity-management and information-sharing protocols and practices" to provide the United States "sufficient information to assess the risks" that their nationals pose. 82 Fed. Reg. at 45,164. The Proclamation also states a diplomatic purpose to encourage foreign governments to improve their information-sharing practices, and other *317general "foreign policy, national security, and counterterrorism objectives." Id.
The Proclamation, however, makes no finding that any nationals from the specified countries, by virtue of their nationality , pose a risk to the United States. The Proclamation merely exclaims that the countries ' faulty protocols create a security risk for the United States. Nowhere in the Proclamation does the President claim that these individuals pose a detriment to the United States' interests because they are nationals of these particular countries. Further, with the exception of Venezuela, see 82 Fed. Reg. at 45,166, the Proclamation lacks any finding that these nationals are responsible for the unstable conditions in their respective countries. Essentially, the Proclamation suffers from the same deficiency as its predecessor: the Proclamation fails to find that the entry of these particular nationals would be detrimental to the interests of the United States.
Nevertheless, the government seeks to justify the ban on the ground that it will serve as a bargaining chip to help elicit greater cooperation from the Designated Countries. This rationale, however, likewise fails to provide an analytical link to the banned nationals. The ability of the Proclamation to wield diplomatic pressure on the target countries is unrelated to the nationals' entry into the United States. That the Proclamation may further diplomatic goals has no association with whether the designated nationals' entry would be detrimental or injurious to the United States in some way. If any such connection between the stated diplomatic purpose and the identified nationals' entry does exist, it is nowhere to be found within the Proclamation's text. Accordingly, I conclude that the plaintiffs are likely to succeed on their claim that the Proclamation fails to make a finding of detriment to the national interest sufficient to invoke Section 1182(f).
3.
Finally, I consider the effect of the INA's anti-discrimination provision,
[N]o person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality , place of birth, or place of residence.
The government attempts to reconcile the President's authority under Section 1182(f) with the INA's anti-discrimination provision by arguing that the Proclamation bars the entry of nationals from the Designated Countries, but does not deny the issuance of immigrant visas to those nationals. However, basic principles of statutory interpretation, as well practical realities attending the Proclamation, lead me to reject this argument.
"It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food & Drug Admin. v. Brown & Williamson Tobacco Corp. ,
The government's contrary argument would require us to conclude that under Section 1182(f), the President could indefinitely nullify the protections against discrimination enshrined in Section 1152(a)(1)(A). Yet the INA lacks any language suggesting that Congress intended such a result.
To the contrary, Section 1152(a)(1)(A) specifically identifies three exemptions from its non-discrimination mandate: Sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153. Section 1182(f) is not included. We presume that Congress' inclusion of some items and its exclusion of other items is intentional. See TRW Inc. v. Andrews ,
To the extent that Section 1152(a)(1)(A) conflicts with Section 1182(f), Section 1152(a)(1)(A) governs. When we are confronted with seemingly conflicting statutory provisions, the later-enacted and more specific provision is treated as an exception to the earlier-enacted, more general provision. See RadLAX Gateway Hotel, LLC v. Amalgamated Bank ,
For these reasons, I conclude that the Proclamation's indefinite suspension of entry constitutes discrimination in the issuance of immigrant visas. Accordingly, the plaintiffs have shown a likelihood of success on the merits of this statutory argument, because the Proclamation violates Section 1152(a)(1)(A) 's prohibition on nationality-based discrimination.
4.
We will adopt a reasonable construction of a statute in order to save the statute from being constitutionally infirm. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council ,
The Constitution does not authorize "unilateral Presidential action that either repeals or amends parts of duly enacted statutes." Hawaii ,
The government's reading of Section 1182(f) directly implicates these separation of powers concerns. The Proclamation allows a permanent restriction on immigration that functions as an executive override of the immigration scheme that Congress chose to enact. If this exercise of authority were permissible under Section 1182(f), then Congress necessarily enabled the President to upend its considered legislative judgment and, thus, to disrupt the balance of our separation of powers. These separation of powers principles are especially important in the present case, because the President effectively has legislated immigration policy, an area reserved to congressional policymaking. See Galvan ,
Though Congress chose to delegate limited authority in this area to the President, the INA sets out the conditions for the exercise of such executive power. When a statute delineates the boundaries of the authority delegated by Congress to the executive branch of government, this process reflects "the result of a deliberative and reflective process engaging both of the political branches." Hamdan v. Rumsfeld ,
The President, through the issuance of the Proclamation, has acted in such a manner. Consequently, he has placed his power "at its lowest ebb."
*320Youngstown Sheet & Tube Co. v. Sawyer ,
The Proclamation is inconsistent not only with the text of Section 1182(f). It is inconsistent not only with the statutory framework of the INA. And it is inconsistent not only with the anti-discrimination provision of Section 1152(a)(1)(A). Rather, the Proclamation is inconsistent with all three. It may be that no single one of these problems renders the Proclamation unlawful. However, these several conflicts between the Proclamation and the INA requires us to acknowledge that the President has overstepped the authority Congress granted him in Section 1182(f). Having scrutinized the Proclamation with the caution that is required, I conclude that the Proclamation exceeds the grant of authority in Section 1182(f) and, thus, that the plaintiffs are likely to succeed on the merits of their statutory claims.
B.
Because the plaintiffs have established a likelihood of success on the merits of their statutory claims, I turn to consider the second Winter factor, namely, whether the plaintiffs have shown a likelihood of irreparable harm.
C.
Next, a court must "balance the competing claims of injury" and "consider the effect on each party of the granting or withholding of the requested relief."
*321Winter ,
Certainly, "the Government's interest in combating terrorism is an urgent objective of the highest order." Holder v. Humanitarian Law Project ,
D.
Finally, a court must determine whether preliminary injunctive relief is in the public interest. Manifestly, national security is a vital public interest. See Haig v. Agee ,
III.
Accordingly, in addition to affirming the district court's judgment with respect to the plaintiffs' Establishment Clause claim and the issuance of a nationwide injunction, I would affirm the court's judgment and award of injunctive relief on the basis that the Proclamation likely violates the INA's prohibition on discrimination in the issuance of immigrant visas under Section 1152(a)(1)(A). I would vacate the portion of the district court's judgment holding that the President likely did not exceed his authority under Section 1182(f) in issuing the Proclamation.
During the pendency of the litigation, the relatives of IAAB Plaintiff Doe No. 6, Zakzok Plaintiff Sumaya Hamadmad, and IRAP Plaintiffs Grannaz Amirjamshidi, Shapour Shirani, and Fakhri Ziaolhagh received their visas. Notice 1, Dec. 6, 2017, ECF No. 160. Zakzok Plaintiff Hamadmad still has another family member who has not yet received a visa.
Plaintiffs also sought a preliminary injunction based on their Equal Protection claim. IRAP v. Trump , 265 F.Supp.3d at 594-95. Because the district court did not reach the question, id. at 629, and because we are able to resolve the case without it, we need not address whether the Proclamation violates the Equal Protection Clause.
We take judicial notice of these agency statements in the public record. See Goldfarb v. Mayor & City Council of Baltimore ,
Chief Judge Gregory and Judges Motz, King, Keenan, Wynn, Diaz, Floyd, Thacker, and Harris, a majority of the Court, find that Plaintiffs have shown a likelihood of success on their Establishment Clause claim. Chief Judge Gregory and Judges Keenan, Wynn, Diaz, and Thacker also find that Plaintiffs are likely to succeed on at least some of their statutory claims. Judges Motz, King, and Harris would resolve the case only on Establishment Clause grounds without reaching the statutory questions.
The Government concedes that this Court has jurisdiction to review an alleged violation of constitutional rights. First Cross-Appeal Br. 25; see Bell v. Hood ,
The Government cites Allen v. Wright for the proposition that "the stigmatizing injury often caused by racial [or other invidious] discrimination ... accords a basis for standing only to those persons who are personally denied equal treatment by the challenged discriminatory conduct." First Cross-Appeal Br. 27 (quoting
Although one Plaintiff with cognizable injuries suffices to confer Article III standing, Bostic ,
The Government also argues that "a U.S. Christian could challenge the Proclamation's exclusion of his relatives who are Syrian Christians as a violation of his own Establishment Clause rights." Third Cross-Appeal Br. 10 (emphasis omitted). Because there are Plaintiffs who have suffered both stigma and prolonged separation from close family members, which we conclude is sufficient to confer standing, we need not determine whether both stigma and prolonged separation are necessary to confer standing.
"[T]hat an injury may be suffered by a large number of people does not of itself make that injury a nonjusticiable generalized grievance." Spokeo , 136 S.Ct. at 1548 n.7.
That the travel restrictions were not fully implemented before December 8, 2017, is not critical to our analysis. The agencies had already taken the final steps necessary to implement the restrictions and were only kept from doing so by two nationwide injunctions, one of which we review here. See, e.g. , DHS Fact Sheet, supra ; State Department Statement, supra ("The preliminary injunctions had prohibited the government from fully enforcing or implementing the entry restrictions of Presidential Proclamation 9645 [.]").
As we explained in IRAP I ,
Contrary to Judge Niemeyer's assertion, Mandel does not demand that "a lack of good faith ... appear on the face of the government's action." If that were the case, the Court would not have needed to examine the record evidence to determine if the Government's reason for denying Mandel's requested waiver-violation of his prior visas-was true. See
Judge Niemeyer unpersuasively contends that in Mandel and Din , "the plaintiffs alleged bad faith with at least as much particularity as do the plaintiffs here." But in neither case did the plaintiffs' allegations come close to the undisputed facts relied on by Plaintiffs here. In Mandel , the plaintiffs did not dispute that Mandel had violated the conditions of his previous visa, and their allegation of bad faith rested largely on their claim that the Attorney General lacked a sufficient basis to characterize that violation as "flagrant ." See
The Government argues that this application of the bona fide inquiry "conflicts with ... Sessions v. Morales-Santana , --- U.S. ----,
As a candidate or President-elect, the President "call[ed] for a total and complete shutdown of Muslims entering the United States," J.A. 135; stated that "Islam hates us," J.A. 814-15; called for excluding Muslims because "we're having problems with the Muslims, and we're having problems with Muslims coming into the country," J.A. 311; suggested that he would attempt to circumvent scrutiny of the Muslim ban by formulating it in terms of nationality, rather than religion; and, when asked about his plans "to create a Muslim register or ban Muslim immigration to the United States," replied, "You know my plans all along, and I've proven to be right, 100 percent correct," J.A. 815-20. See IRAP I ,
The Government rather remarkably argues that because there is no suggestion that Cabinet secretaries and other government officials acted in bad faith or harbored anti-Muslim animus when conducting the review, the Proclamation must have a secular purpose. First Br. 43. Our Constitution describes a unitary executive, and "a President, though able to delegate duties to others, cannot delegate ultimate responsibility or the active obligation to supervise that goes with it." Clinton v. Jones ,
For example, although the Proclamation acknowledges that the review showed that Somalia, a majority-Muslim country, satisfied "the information-sharing requirements of the baseline," Somalian citizens are subject to entry restrictions. 82 Fed. Reg. at 45,167. Similarly, although Immigration and Customs Enforcement has determined that many countries regularly fail to receive deportees from the United States, J.A. 1295, a risk indicator considered in the review, the Proclamation only designates Iranian citizens for entry restrictions for this reason, 82 Fed. Reg. at 45,163, 45,165. Thus, as the district court recognized, the Proclamation's provisions have a greater "disproportionate impact on majority-Muslim countries" than "would otherwise flow from the objective factors considered in the review." IRAP v. Trump , 265 F.Supp.3d at 626.
As fifteen states and the District of Columbia have submitted to the Court, they "all benefit from immigration, tourism, and international travel by students, academics, skilled professionals, and businesspeople." Br. for States of New York, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and Washington, and the District Of Columbia as Amici Curiae at 4. They summarize the effects of the Proclamation as follows:
[T]he Proclamation ... disrupt[s] the ability of our States' public colleges and universities to recruit and retain students and faculty, impairing academic staffing and research needs, and causing the loss of tuition and tax revenues, among other costs. The Proclamation ... disrupt[s] the provision of medical care at amici States' hospitals and further harms our science, technology, finance, and tourism industries by inhibiting ... the free exchange of information, ideas, and talent between the designated countries and our States, causing long-term economic and reputational damage.
Whether the President has the inherent power to enact the Proclamation is discussed in Part III.
Two Supreme Court cases speak broadly of the President's inherent foreign affairs powers but both involved the delegation of legislative power and therefore cannot stand for the proposition that the President may independently set his own immigration policy. See Knauff ,
Concerns with broad delegations of unconstrained discretion are applicable to the President. See, e.g. , Panama Ref. Co. v. Ryan ,
One might misconstrue some language in Knauff to say that delegating immigration power can never violate nondelegation given the executive's inherent powers. See
The INA provisions invoked by the Proclamation are similar in critical respects to the statute at issue in Panama , which the Court invalidated on nondelegation grounds. See
I take judicial notice of these publicly available statistics on the State Department's website. See Goldfarb v. Mayor & City Council of Baltimore ,
Whatever the wisdom and constitutionality of the Chinese Exclusion Act today, the power to restrict migration based on nationality, when it has been exercised, has resided with Congress, not the President. See Harisiades v. Shaughnessy ,
In striking down the line item veto, the Supreme Court articulated three factors for distinguishing a valid exercise of delegated discretion from an unconstitutional legislative amendment. Clinton ,
Dulles interpreted the 1952 version of § 1185(a), which authorized the imposition of additional restrictions and prohibitions on travel during war or national emergency when the President "shall find that the interests of the United States" required it. Section 1185(b) authorized passport requirements upon proclamation by the President.
President Carter, unlike other Presidents, did not specifically invoke § 1182(f) ; instead, he invoked the 1952 version of § 1185(a). I nonetheless address his order here because it is conceptually similar and could be read as invoking the Immigration and Nationality Act generally and inclusively. Exec. Order No. 12,172,
As the Supreme Court has held, the existence of an exigency is a "judicial question" to the extent that the executive may be exceeding that constraint on his authority. See Sterling v. Constantin ,
Unlike § 1182(f), § 1185(a) does not even go so far as to authorize the denial of entry to "class[es] of aliens." Compare § 1182(f)with § 1185(a). By referring to "any alien," § 1185(a) does not clearly authorize categorical restrictions based on nationality. Even if a "class" of aliens under § 1182(f) could be read to encompass a whole nation's citizens, "any alien" under § 1185(a) certainly cannot be.
Restrictions on travel infringe upon liberty interests of those present in the United States, including noncitizens. See, e.g. , Landon v. Plasencia ,
Br. for the Cato Institute as Amicus Curiae at 16-21. As a result, inadequacies in information sharing, electronic passports, and the like are not rare scenarios that the executive has never encountered or has addressed via nationality-based entry restrictions. Cf. Haig v. Agee ,
Historically, the 1978 version of § 1185(a)(1) has never been invoked as the sole statutory basis for enacting an entry ban; it has been invoked only in conjunction with § 1182(f). See Manuel, supra . Indeed, § 1185(a)(1) provides auxiliary power for the administrative implementation of requirements created or authorized under another statutory provision.
Congress overhauled our nation's immigration laws, not only to remove racist quotas, but to make "[f]amily unity ... the first and foremost objective of the new system." 111 Cong. Rec. 21,585 (1965) (statement of Rep. Feighan). Congress expressly acted to ensure "that the family unit may be preserved as much as possible" under our immigration laws. H.R. Rep. No. 89-745, at 12 (1965); see
Despite repeatedly characterizing the Proclamation as a sanction during oral argument, the Government cannot escape Congress's plenary power over commerce. Just as the classification of foreign nationals have required legislation, so too have sanctions that restrict the movement of people and goods. See, e.g. ,
It is particularly appropriate to review the Proclamation's specific restrictions given the Proclamation's severability clause, to which courts should give effect if possible. 82 Fed. Reg. at 45,171.
Indeed, the Proclamation concludes that at least three of the banned countries are "important and valuable counterterrorism partner[s]." 82 Fed. Reg. at 45,165 -66 (referring to Chad, Libya, and Yemen).
For the reasons stated in the Majority Opinion, ante 269-72, I conclude that the three remaining Winter factors favor the entry of a preliminary injunction. Winter v. Nat. Res. Def. Council, Inc. ,
Concurrence Opinion
I concur fully in the majority opinion's analysis and conclusion that the Proclamation's indefinite suspension of entry of nationals from eight countries, six of which are predominantly Muslim, likely violates the Establishment Clause. I also concur fully in the majority opinion's conclusion that Plaintiffs have standing to assert their constitutional claim, that Plaintiffs' constitutional claim is justiciable, and that the balance of equities supports enjoining the *322Proclamation's indefinite suspension on entry. And I further concur in Chief Judge Gregory's and Judge Keenan's determinations that Plaintiffs have standing to raise their statutory claims and that those claims are otherwise justiciable. I write separately because I do not believe that resolving this case on constitutional grounds alone adequately serves all of the interests we must vindicate. In particular, the Proclamation's indefinite suspension on entry-which the majority correctly determines was "driven by anti-Muslim bias," ante at 264-exceeds the authority Congress delegated to the President in the Immigration and Nationality Act (the "Immigration Act"),
Neither the dissenting opinion nor the Government has taken the position that the Immigration Act-or the Constitution, for that matter-permits the President to deny entry to a class of individuals defined by their race, sex, national origin, or religion solely on the basis of animus against that race, sex, nationality, or religion. On the contrary, during oral argument, the Government conceded that a presidential proclamation banning entry of aliens on the basis of invidious discrimination would exceed the President's authority under the Immigration Act and the Constitution. Oral Arg. Rec. 11:35-12:20 (conceding that the President lacks authority under the Immigration Act to ban men from entering the United States because "under constitutional law you can't use forbidden traits as a proxy, you have to target the actual conduct that you are worried about").
And the President never has disputed that his Proclamation banning entry of nationals of predominantly Muslim countries implements his campaign promise to ban Muslims from entering the United States. Again to the contrary, notwithstanding numerous efforts by his subordinates and attorneys to characterize the Proclamation as responding to legitimate national security risks posed by terrorists and countries that fail to maintain or share adequate information regarding their nationals, the President and his advisors repeatedly and consistently represented to the public that the Proclamation relies on national origin as a proxy for discriminating based on anti-Muslim animus. E.g. , J.A. 135, 168, 779, 791, 808-10, 815-20, 1497-1500, 1502-03. Indeed, the President repeatedly distanced himself from the non-discriminatory policy rationales of his subordinates upon which the Proclamation and the Government relies. J.A. 791, 832. Accordingly, this Court must decide *323whether to accept the President 's consistent characterization of his Proclamation as intended to invidiously discriminate against Muslims-and therefore hold that the Proclamation violates the law-or reject or ignore the President 's explanation of his Proclamation -and therefore uphold the Proclamation.
As my colleagues' opinions recognize, resolving that question implicates difficult questions regarding the carefully constructed constitutional allocation of powers within and among the three coordinate branches-and the degree of judicial deference that allocation of powers contemplates-as well as the judiciary's long-recognized obligation to give effect to the individual and collective rights set forth in the Constitution. Any decision the judiciary renders on the lawfulness of the President's Proclamation necessarily will display some lack of deference to the executive branch: If we uphold the Proclamation, as the dissent would have us do, we will be refusing to respect the President's own stated purpose in promulgating the Proclamation and his position as the unitary head of the executive branch , in favor of policy conclusions reached by his unelected subordinates-policy rationales with which the President has repeatedly expressed disagreement. By contrast, if we strike down the Proclamation, we will be refusing to give effect to the considered judgment of those subordinates-who are better positioned to address questions of national security than the judiciary-that the Proclamation advances legitimate, non-discriminatory interests.
Additionally, any decision the judiciary renders will implicate the due respect we must show to Congress. In particular, if we accept the President's repeated characterizations of his Proclamation as serving his goal of banning Muslims and simultaneously conclude that the Proclamation complies with the Immigration Act, we would necessarily conclude that Congress authorized the President to engage in invidious discrimination on the basis of race, sex, national origin, or religion. Likewise, if we accept the Government's argument that the Immigration Act confers on the President unfettered discretion to deny entry to any class of aliens-including classes defined solely on the basis of race, sex, national origin, or religion-then we would necessarily conclude that the President can nullify Congress's "finely reticulated regulatory scheme governing the admission of foreign nationals." Hawai'i v. Trump ,
Given that this case raises fundamental questions regarding allocation of powers, judicial deference, and individual and collective rights-and because, as Judge Harris wisely notes, any constraints our opinion imposes "will operate against future Presidents under future circumstances as yet unknown," post at 352-I believe we must decide this case narrowly, in a manner that protects the core constitutional rights at stake without unduly intruding on the deference we owe to our coordinate branches. Judge Harris's opinion concludes *324that because Plaintiffs' Establishment Clause challenge turns on "a series of facts that is highly unusual and unlikely to recur," deciding this case solely on constitutional grounds "will prove to be a precedent of exceedingly limited application." Id. at 352, 353. I share Judge Harris's hope that the judiciary will not again be forced to confront a presidential action "inexplicable by anything but animus towards the class it affects." Romer v. Evans ,
But, as stated earlier, I do not believe that resolving this case on constitutional grounds alone adequately serves all of the interests we must vindicate. In particular, if we conclude that the Proclamation's indefinite ban on entry violates the Establishment Clause without addressing Plaintiffs' claim that the ban exceeds the President's authority under the Immigration Act, we will leave the impression that Congress may have authorized the President to encroach on deeply engrained constitutional rights by invidiously discriminating against a disfavored religious group-precisely what the due respect we must show to Congress's constitutional judgment forbids. Because (1) imposing burdens on individuals solely on the basis of their race, sex, national origin, or religion is "odious to a free people whose institutions are founded upon the doctrine of equality," Hirabayashi v. United States ,
As I explained in concluding that the previous iteration of the President's travel ban exceeded the President's authority under the Immigration Act, the statutory provision upon which the Government principally relies,
Accordingly, in addition to agreeing with the majority's conclusion that the Proclamation's indefinite ban on entry violates the Establishment Clause, I also conclude that the ban exceeds the President's authority under the Immigration Act, which *325nowhere authorizes the President to deny entry based on invidious discrimination against members of a particular race, sex, nationality, or religion. Significantly, my conclusion that the Immigration Act does not authorize the President to engage in invidious discrimination in denying entry to classes of aliens constitutes a minimal constraint on the broad discretion Congress afforded to this President and future executives to control our borders by denying entry to classes of aliens that are detrimental to national interests. Rather, it simply requires that the President exercise that discretion in accordance with foundational constitutional principles-a conclusion with which the Government agrees. See Oral Arg. Rec. 11:35-12:20. Put differently, the constraint imposed by my construction of the Immigration Act is no greater than that imposed by the Constitution.
I.
The Government principally has argued, both on appeal and before the district court, that the suspension on entry falls within the President's delegated power under
The majority opinion finds, and I agree, that Plaintiffs are likely to establish-based on statements by the President and his advisors-that in promulgating the Proclamation's indefinite ban on entry, the President relied on one suspect classification (national origin) as a proxy to purposely discriminate against members of another suspect class (adherents to a particular religion) solely on the basis of their membership in that class. Ante at 266-68. Thus, in considering Plaintiffs' statutory claim, we confront the following question: Did Congress, in enacting Section 1182(f), authorize the President to deny entry to a class of aliens on the basis of invidious discrimination?
A.
Two related canons of statutory construction bear directly on this question. First, under the "constitutional avoidance canon," "when an Act of Congress raises 'a serious doubt' as to its constitutionality, '[courts must] first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.' " Zadvydas ,
The Supreme Court has applied the constitutional avoidance canon on several occasions to narrow facially broad statutes relating to immigration and national security. For example, in Zadvydas v. Davis ,
The Supreme Court also relied on the constitutional avoidance canon in I.N.S. v. St. Cyr ,
The second applicable canon of construction-which is a corollary to the constitutional avoidance canon-requires an even clearer indication of congressional intent regarding the infringement on constitutional rights due to the absence of direct action by Congress. That canon forbids courts from construing a "broad generalized"
*327delegation of authority by Congress to the executive as allowing the executive to exercise that delegated authority in a matter that "trench[es]" upon fundamental rights, Kent ,
Under this canon, which I will refer to as the "nondelegation canon of constitutional avoidance," courts must "construe narrowly all delegated powers that curtail or dilute" fundamental rights. Kent ,
As with the constitutional avoidance canon, the Supreme Court has applied the nondelegation canon of constitutional avoidance to statutes involving immigration and national security. For example, in United States v. Witkovich ,
The Supreme Court also applied the nondelegation canon of constitutional avoidance in Kent v. Dulles ,
Taken together, the two canons reflect the basic principle that "when a particular interpretation of a statute invokes the outer limits of Congress's power, we expect a clear indication that Congress intended that result." St. Cyr , 533 U.S. at 299,
*329B.
The constitutional avoidance canon and the nondelegation canon of constitutional avoidance bear directly on the scope of authority conferred on the President by Congress under Section 1182(f) because, if construed broadly, Section 1182(f) could authorize the President to infringe on fundamental constitutional rights. In particular, the Supreme Court has "consistently repudiated '(d)istinctions between citizens solely because of their ancestry' [or race] as being 'odious to a free people whose institutions are founded upon the doctrine of equality.' " Loving v. Virginia ,
Although religion, unlike race and national origin, is not an immutable characteristic, the Constitution treats classifications drawn on religious grounds as equally offensive. The First Amendment "mandates governmental neutrality between religion and religion, and between religion and nonreligion." McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky. ,
If Congress delegated to the President the authority to deny entry to an alien or group of aliens based on invidious discrimination against a race, sex, nationality, or religion, then Section 1182(f) would encroach on the core constitutional values set forth in the First, Fifth, and Fourteenth Amendments: The President could deny entry to aliens of a particular race solely based on the color of their skin. The President could deny entry to a class of aliens solely based on their sex. The President could deny entry to nationals of a particular country solely on the basis of their place of birth. The President could deny entry to adherents of a particular religion solely because of their subscription to that faith. Or, as this Court concludes the President did here, the President could rely on one form of invidious discrimination-discrimination based on national origin-to serve as pretext for implementing another form of invidious discrimination-discrimination based on religion.
The President justified his use of this layered invidious discrimination on grounds that nationals of the predominantly Muslim countries subject to the ban on entry pose a special risk to United States security. Proclamation, Preamble . In particular, the Proclamation states that most, but not all, of the countries subject to the suspension on entry failed to meet "baseline" criteria specified by the Department of Homeland Security regarding the maintenance and sharing identity and national security information regarding their nationals.
The Proclamation further states that the predominantly Muslim countries subject to the suspension on entry "also have a significant terrorist presence within their territory."
[T]o infer that examples of individual [misconduct] prove group [misconduct] and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference ... has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference ... is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow.
*331Korematsu v. United States ,
To be sure, the Supreme Court has recognized that, particularly in times of war,
But the Supreme Court also has long, and repeatedly, held that Congress's power to create immigration laws remains "subject to important constitutional limitations." Zadvydas , 533 U.S. at 695,
Here, aliens who are denied entry by virtue of the President's exercise of his authority under Section 1182(f) can claim few, if any, rights under the Constitution. But when the President exercises that authority based solely on animus against a particular race, sex, nationality, or religion, there is a grave risk-indeed, likelihood-that the constitutional harm will redound to individuals who can claim constitutional rights. Cf. Kleindienst v. Mandel ,
Because construing the Immigration Act as authorizing the President to engage in invidious discrimination is plainly inconsistent with basic constitutional values and because the violation of those values implicates the rights of citizens and lawful permanent residents, not just aliens, the Government's proposed construction "raise[s] serious constitutional problems." St. Cyr , 533 U.S. at 299-300,
C.
Having concluded that the Government's broad construction of the Immigration Act raises serious constitutional concerns, we must reject that construction absent a "clear indication of congressional intent" to allow the President to deny the entry of classes of aliens on invidiously discriminatory bases. Zadvydas , 533 U.S. at 696-97,
*333To ascertain congressional intent, we look to the "plain meaning" of Section 1182(f). Ross v. R.A. North Dev., Inc. (In re Total Realty Mgmt.) ,
1.
Beginning with the plain language, Section 1182(f) permits the President to suspend the entry of "any aliens or of any class of aliens" only when he "finds that the entry of [such aliens] would be detrimental to the interests of the United States." Accordingly, the plain language of Section 1182(f) does not explicitly authorize the President to deny entry to a class of aliens solely defined by religion or by race, sex, national origin, or other immutable characteristic.
Nonetheless, in arguing that Section 1182(f) authorizes the Proclamation's suspension on entry, the Government focuses on that statute's use of the term "any class of aliens." Appellants' Br. at 29. But the Government's argument omits the crucial limitation Congress imposed by requiring that the President may bar entry only upon a finding that entry of a class of aliens "would be detrimental to the interests of the United States."
Detrimental is defined as "harmful" or "damaging." Webster's Third New International Dictionary (2002). Accordingly, Section 1182(f) authorizes the President to deny entry to an alien if the President has reason to believe that, by virtue of the alien being a member of a particular class, the alien's entry is more likely to damage or harm the interests of the United States. But the Constitution forbids imposing legal burdens on a class of individuals solely based on race or national origin precisely because those immutable characteristics bear no "relationship to individual responsibility." Weber ,
*334Seeger ,
Because race, sex, national origin, and religion bear no factual or constitutionally cognizable relationship to individual responsibility, courts have long interpreted delegation provisions in the Immigration Act as barring executive officials from engaging in invidious discrimination. For example, in United States ex rel. Kaloudis v. Shaughnessy ,
Judge Friendly made this point clear in Wong Wing Hang v. I.N.S. ,
Just as Congress "could not have intended to make" considerations like "invidious discrimination against a particular race or group" relevant to the Attorney General's discretionary decision to suspend an alien's deportation from the United States,
2.
Nor does the broader context of the Immigration Act, and Section 1182(f) 's place within it, suggest that Congress intended Section 1182(f) to allow the President to suspend the entry of a class of aliens based on invidious discrimination. In Section 1182(a), Congress enumerates numerous specific classes of aliens who are ineligible for visas or admission. These categories encompass, for example, classes of individuals who pose a variety of health, safety, and security risks, or are likely to become public charges. See generally
Importantly, most of the categories of inadmissible classes of aliens Congress sets forth in Section 1182(a) relate to past conduct by an alien that renders the alien particularly dangerous to the interests of the United States. E.g. , § 1182(a)(2) ; § 1182(a)(3) ; § 1182(a)(6)(E) ; § 1182(a)(8)(B) ; § 1182(a)(9)(A). And, in accordance with Congress's decision to define categories of inadmissible aliens largely based on individual conduct and responsibility rather than considerations over which aliens have no control, none of the Section 1182(a) categories render a class of aliens inadmissible solely on the basis of religion or of race, sex, national origin, or other immutable characteristic.
Notwithstanding Congress's enumeration of the many general and specific categories and classes of aliens that the executive branch may or must deem inadmissible-and its failure to include any category defined by race, sex, national origin, or religion alone-the Government argues that, in enacting Section 1182(f), Congress delegated to the President the authority to deny entry to any class of aliens for any reason whatsoever, necessarily including for invidiously discriminatory reasons. Appellants' Br. at 29-30. But in construing a statutory provision, we must, if at all possible, avoid a construction "that would render another provision [in the same statute] superfluous." Bilski v. Kappos ,
*336The District of Columbia Circuit reached an identical conclusion in Abourezk v. Reagan ,
"To preserve the significance of both sections, and the congressional intent that guided their adoption," the court held that the Attorney General could not rely on Subsection (27) to exclude aliens who were or had been members of a Communist party unless "the reason for the threat to the 'public interest[,] ... welfare, safety, or security' " that the Attorney General put forward as a basis for barring entry under Subsection (27) was "independent of the fact of membership in or affiliation with the proscribed organization."
For the same reason, the President's reliance on Section 1182(f) as a basis for the Proclamation's ban on entry also is inconsistent with Section 1182(a)(3)(B), which includes "specific criteria for determining terrorism-related inadmissibility." See Kerry v. Din , --- U.S. ----,
Section 1182(a)(3)(B) renders inadmissible aliens who have been, are, or may in the future be connected to or engaged in terrorist activity, including aliens who have "engaged in a terrorist activity"; those whom government officials know or have reasonable cause to believe are "likely to engage after entry in any terrorist activity"; those who have "incited terrorist activity"; and those who "endorse[ ] or espouse[ ] terrorist activity or persuade[ ] others to" do so or who "support a terrorist organization."
Congress established these "specific criteria for determining terrorism-related inadmissibility,"
*337Din , 135 S.Ct. at 2140, against the backdrop of the executive branch's exclusion of aliens based on "mere membership in an organization, some members of which have engaged in terrorist activity" even when there was no indication that the alien seeking admission was himself engaged in such activity. H.R. Rep. No. 100-882, at 19 (1988). By enacting specific provisions regarding the inadmissibility of aliens who are or have been engaged in terrorist activity, Congress sought to make clear that "the definitions of 'terrorist activity' and 'engages in terrorist activity' must be applied on a case by case basis" and that "simple membership in any organization ... is not per se an absolute bar to admission to the United States"-whether under the President's general authority to bar entry or otherwise. Id. at 30. If Congress has deemed it unlawful for the President to absolutely bar the entry of aliens who are members of an organization that includes some members who engage in terrorism, it defies logic that Congress delegated to the President in Section 1182(f) the far broader power to absolutely bar the entry of aliens who happen to have been born in a particular country , within the borders of which some individuals have engaged in terrorism. Indeed, under such reasoning the President would be entitled to ban entry of all nationals from the numerous European countries-including France, Germany, and the United Kingdom-in which terrorists acts have been planned and committed.
Likewise, the Proclamation's reliance on the inadequacy of the subject countries' vetting capabilities and processes as a basis for the ban on entry is inconsistent with the Visa Waiver Program, which specifically addresses how the executive branch should handle differences among foreign countries with respect to information-sharing and identity management practices.
The inconsistencies between the President's claimed authority under Section 1182(f) and Section 1182(a)(3)(B) and the Visa Waiver Program are precisely why courts apply the canon of statutory construction "that the specific governs the general." RadLAX Gateway Hotel, LLC v. Amalgamated Bank ,
*338
Interpreting Section 1182(f) to allow the President to suspend the entry of aliens based solely on their race, sex, nationality, or other immutable characteristics also would conflict with
Section 1152(a) deals with issuance of immigrant visas , rather than entry, which is governed by Section 1182. Nonetheless, reading Section 1182(f) as authorizing the President to deny entry based on invidious discrimination would place Section 1182(f) in conflict with Section 1152(a), which prohibits invidious discrimination in the issuance of visas. In particular, the Immigration Act authorizes the executive branch to refuse to issue a visa to any alien who "is ineligible to receive a visa or such other documentation under section 1182."
Accordingly, Section 1182(f) 's function within the Immigration Act does not clearly indicate that Congress intended to delegate to the President the authority to suspend the entry of aliens based on invidious discrimination. On the contrary, construing Section 1182(f) as broadly authorizing the President to engage in invidious discrimination in denying entry would render superfluous the numerous categories of inadmissible aliens Congress took pains to identify in Section 1182(a), including the provisions directly addressing aliens who pose a risk of engaging in terrorist activities or are nationals of countries with inadequate vetting procedures, and conflict with Section 1152(a) 's prohibition on discrimination based on race, sex, nationality, and other immutable characteristics.
3.
Reading the Immigration Act as allowing the President to deny entry to classes of aliens based on invidious discrimination also would contradict the "object and policy" underlying the Immigration Act. See U.S. Nat'l Bank of Or. , 508 U.S. at 455,
Prior to the 1965 Revisions, the Immigration Act employed nationality-based quotas, limiting the number of immigrants admissible to the nation each year based on nation of birth. President Kennedy called on Congress to repeal the nationality-based quota system, condemning it as a system "without basis in either logic or reason" that "neither satisfie[d] a national need nor accomplishe[d] an international purpose" but instead "discriminate[d] among applicants for admission into the United States on the basis of accident of birth." Letter to the President of the Senate and to the Speaker of the House on Revision of the Immigration Laws, 1963 PUB. PAPERS 594, 595 (July 23, 1963). After President Kennedy's assassination, President Johnson renewed Kennedy's request for "the elimination of the national origins quota system," which he described as "incompatible with our basic American tradition" and "our fundamental belief that a man is to be judged-and judged exclusively-on his worth as a human being." Special Message to the Congress on Immigration, 1965 PUB. PAPERS 37, 37, 39 (Jan. 13, 1965).
The 1965 Revisions answered President Kennedy's and President Johnson's calls. Congress explained that the 1965 Revisions abolished nationality-based discrimination in the immigration system to "firmly express in our immigration policy the dedication which our nation has to the principles of equality, of human dignity, and of the individual worth of each man and woman." S. 1932 & Other Legislation Relating to the Immigration Quota System Before the S. Subcomm. on Immigration & Naturalization Vol. 1 , 88th Cong. 4 (1964) (statement of Sen. Kennedy). Time and again Congress connected the need to eliminate the nationality-based quota system to American "tenets of equality irrespective of race, creed, or color" and emphasized that abolishing nationality-based quotas "demonstrat[ed] to the whole world that we practice what we preach, and that all men are equal under law." S. 1932 & Other Legislation Relating to the Immigration Quota System Before the S. Subcomm. on Immigration & Naturalization Vol. 2 , 88th Cong. 100-01 (1964) (statement of Sen. Fong); see also
Upon signing the bill into law at Liberty Island, New York, President Johnson lauded the end of the nationality-based discrimination that previously defined the American system of immigration, describing the 1965 Revisions as abolishing "the *340harsh injustice of the national origins quota system," which "violated the basic principle of American democracy-the principle that values and rewards each man on the basis of his merit as a man." 1965 PUB. PAPERS 1037, 1038-39 (Oct. 3, 1965). As a result of the 1965 Revisions, immigrants would be permitted to come to America "because of what they are, and not because of the land from which they sprung ." Id. at 1039 (emphasis added).
To effect its purpose of eliminating discrimination in the immigration system, Congress stripped the Immigration Act of all provisions expressly authorizing national origin-based invidious discrimination and added Section 1152(a)(1) 's prohibition on discrimination in the issuance of visas based on nationality and other immutable characteristics, such as race. As evidenced by Section 1152(a)(1), disregarding national origin in selecting which immigrants to admit to the United States remains a core principle of United States immigration policy. Far from evidencing "any clear indication" that Congress intended the President to have the authority to exercise his Section 1182(f) powers based on invidious discrimination, the "object and policy" of the Immigration Act suggest that Congress did not intend to grant the President unbridled authority to engage in invidious discrimination when deciding whether and to what extent to suspend alien entry.
The Government points to a number of orders promulgated by Presidents pursuant to their authority under Section 1182(f) as evidence that that statutory provision authorizes the President to engage in national-origin-based discrimination. But the previous orders the Government cites materially differ from the Proclamation, in that they did not suspend the entry of classes of aliens based on national origin alone, let alone use national origin as a proxy to suspend the entry of a class of aliens based on another invidiously discriminatory basis, such as religion. See Proclamation 8693 (July 24, 2011) (suspending the entry of aliens subject to travel bans issued by the United Nations Security Council's resolution barring member nations from permitting the entry of individuals who threaten peace in various nations); Proclamation 8342 (Jan. 22, 2009) (suspending the entry of senior government officials "who have impeded their governments' antitrafficking efforts, have failed to implement their governments' antitrafficking laws and policies, or who otherwise bear responsibility for their governments' failures to take steps recognized internationally as appropriate to combat trafficking in persons"); Proclamation 6958 (Nov. 22, 1996) (suspending the entry of "members of the Government of Sudan, officials of that Government, and members of the Sudanese armed forces" based on the Sudanese government's harboring of individuals who attempted to assassinate the Egyptian President in Ethiopia, in violation of Ethiopian sovereignty); Executive Order No. 12,807 (May 24, 1992) (suspending the entry of "undocumented aliens [entering the United States] by sea" during the mass exodus of Haitian nationals fleeing a military coup, often in dangerous and overcrowded sea vessels); Proclamation 5887 (Oct. 22, 1988) (suspending the entry of "officers and employees" of the Nicaraguan government as nonimmigrants to the United States based on the Nicaraguan government's "unjustified expulsion" of American diplomats and "long-standing ... suppression of free expression and press and support of subversive activities throughout Central America"); Proclamation 5829 (June 10, 1988) (suspending the entry of "Panamanian nationals ... who formulate or implement the policies of Manuel Antonio Noriega and Manuel Solis Palma" due to those officials' act of "preventing the legitimate government ...
*341from restoring order and democracy" to Panama).
Of the proclamations and executive orders cited by the Government, President Reagan's suspension on the entry of Cuban nationals as immigrants comes closest to a nationality-based suspension on alien entry. Proclamation 5517 (Aug. 22, 1986). But that executive action was not challenged as a violation of either Section 1182(f) or Section 1152(a)(1), and therefore the judiciary never had the opportunity to address whether the order complied with those provisions or the Constitution. Nor does a single, unchallenged executive action "demonstrate the kind of consistent administrative interpretation necessary to give rise to a presumption of congressional acquiescence." Abourezk ,
* * * * *
In sum, the language of Section 1182(f), related provisions in the Immigration Act, and the "object and policy" of the statute do not "explicitly" state, much less provide a "clear indication," that Congress intended to delegate to the President wholly unconstrained authority to deny entry to any class of aliens, including based on invidiously discriminatory reasons. See Zadvydas , 533 U.S. at 697,
II.
A.
The separate concurring opinions of Chief Judge Gregory and Judge Keenan make compelling arguments that Section 1182(f) poses additional constraints on the President's authority to deny entry to classes of aliens, beyond simply precluding the President from exercising his delegated authority based on invidious discrimination, as I conclude. In particular, Chief Judge Gregory would hold that, " § 1182(f) is a gap-filling provision that empowers the President to exclude (1) foreign nationals whose individual conduct or affiliation makes their entry harmful to national interests for reasons unanticipated by Congress and (2) foreign nationals in response to a foreign-affairs or national-security exigency." Ante at 296. Chief Judge Gregory's conclusion as to the full scope of the authority conferred on the President by the Immigration Act to deny entry to classes of aliens may prove correct. But I decline to join his opinion's statutory analysis because we need not define the full scope of the President's authority under the Immigration Act to resolve Plaintiffs' statutory claim. Rather, it is sufficient that we find that whatever authority the Immigration Act delegates to the President to deny entry to classes of aliens, that authority does not encompass invidious discrimination on the basis of race, sex, national origin, or religion.
Additionally, in rendering his conclusion as to the full scope of authority conferred on the President by Section 1182(f), Chief Judge Gregory's opinion addresses complex and unresolved constitutional questions regarding the allocation of authority over immigration regulation between Congress and the President, the scope of Congress's authority to delegate its powers, and the President's inherent power to control *342and protect our borders. But given that we generally should avoid unnecessarily resolving novel and complex constitutional questions, Leroy v. Great W. United Corp. ,
Judge Keenan's concurring opinion also concludes that the Proclamation exceeds the President's authority under Section 1182(f). Ante at 314-15. Her opinion does not simply conclude, however, that Section 1182(f) does not authorize the President to engage in invidious discrimination-discrimination for its own sake-on the basis of race, sex, national origin, or religion, as I conclude. Rather, Judge Keenan's opinion further determines that the Proclamation's lack of temporal limitation conflicts with the plain language of Section 1182(f), which authorizes the President to "suspend" entry of a class of aliens.
Each of these additional determinations rests on thoughtful and persuasive analysis of the governing statutory language and the text of the Proclamation. But her opinion's proposed construction of the statute would impose additional constraints on the President's authority under Section 1182(f), requiring him to specify a duration, in some form, for any suspension on entry and provide greater specificity as to the reasons entry of a particular alien or class of aliens would be detrimental to the interests of the United States. Because any construction of Section 1182(f)"will operate against future Presidents under future circumstances as yet unknown," post at ----, I am wary of unnecessarily circumscribing the President's authority under Section 1182(f), particularly when I am confident that that there are no circumstances in which it would be proper for the President to exercise his authority under Section 1182(f) on the basis of invidious discrimination-a proposition that the Government does not dispute. See Oral Arg. Rec. 11:35-12:20; cf. Korematsu ,
B.
Like the Government-which concedes that the President cannot use "forbidden traits" in exercising his authority under Section 1182(f), Oral Arg. Rec. 11:35-12:20-the separate opinion of my colleague Judge Niemeyer acknowledges that Section 1182(f) does not authorize the President to engage in invidious discrimination in denying entry to classes of aliens, post at 372 ("[I]t is surely correct that Congress did not authorize 'invidious discrimination' in conferring authority on the President in § 1182(f)...."). Nor does Judge Niemeyer dispute the majority opinion's determination that, as a factual matter, in promulgating the Proclamation the President sought to advance his repeatedly stated goal of invidiously discriminating against Muslims.
Rather, Judge Niemeyer's opinion maintains that ascertaining the President's actual purpose in promulgating the Proclamation is irrelevant to our determination as to whether the Proclamation complies with the Immigration Act and the Constitution. In particular, Judge Niemeyer maintains that the Proclamation complies *343with Section 1182(f) and the Constitution because the face of the Proclamation sets forth a plausible national security justification for the indefinite ban on entry and does not provide any evidence that the Proclamation was motivated by invidious discrimination. Post at 353-55. Put differently, according to Judge Niemeyer, any facts outside of the four corners of the Proclamation do not constitute competent evidence of the President's purpose in promulgating the Proclamation.
To begin, Judge Niemeyer's position-that the President's statements do not constitute competent evidence of his purpose in promulgating the Proclamation-runs contrary to how courts treat such evidence in most other legal contexts. Of particular relevance, the Supreme Court has recognized that "contemporary statements by members of the decisionmaking body" are "highly relevant" to determining whether a governmental body acted with discriminatory intent-even when the action is nondiscriminatory on its face. Vill. of Arlington Heights v. Metro. Housing Dev. Corp. ,
Likewise, the Supreme Court has relied on contemporary statements by governmental actors to find that a statute or other governmental action violated the Establishment Clause because it was intended to advance a sectarian purpose or discriminate against a disfavored religion. See, e.g. , McCreary Cty. ,
And in criminal law, courts routinely rely on a defendant's statements to establish that the defendant intended to commit, and did in fact commit, a crime. See, e.g. , Roper v. Simmons ,
Accordingly, Judge Niemeyer's assertion that this Court must close its eyes to the President's own statements indicating that he intended for the Proclamation to give effect to his anti-Muslim animus-statements by "the most knowledgeable and unimpeachable source of information" about the motivation behind the Proclamation's suspension on entry,
Closing one's eyes to the President's official statements regarding the suspension on entry-as Judge Niemeyer suggests-also runs contrary to the duty the law usually imposes on the public, attorneys, and judges not to ignore probative information. For example, numerous statutes forbid members of the public from acting as "an ostrich, hiding [their] head in the sand from relevant information." Greenhouse v. MCG Capital Corp. ,
Likewise, pursuant to the rules of procedure, courts bar attorneys from closing their eyes to contrary authority or facts not supportive of their position. See, e.g. , Mays v. Springborn ,
The rationale for such rules is straightforward. Closing one's eyes to probative information creates a risk of rendering an errant decision based on an incorrect or incomplete understanding of the relevant facts. Ignoring relevant information-particularly when, as with the President's statements regarding the suspension on entry, the information is widely known and disseminated-also undermines judicial legitimacy by making the public believe judicial decisions rest on a false or inaccurate characterization of the governing facts. Cf. McCreary Cty. ,
To be sure, there are exceptional cases in which courts disregard probative evidence when doing so advances other legal or constitutional values. For example, the rules of evidence prohibit admission of certain types of evidence, like hearsay, which the rules deem sufficiently unreliable or unduly prejudicial. Likewise, the exclusionary rule bars consideration of evidence obtained in violation of a criminal defendant's constitutional rights to encourage law enforcement officers to act in accordance with constitutional protections. See Miranda v. Arizona ,
But there is no question that the President's statements upon which the majority relies, which were widely reported and disseminated, provide reliable evidence of the President's intent. The Government acknowledges that the President's tweets, for example, constitute "official" statements of the President. J.A. 794, 1521.
And the only constitutional value that Judge Niemeyer identifies as being advanced by ignoring the President's statements is the judiciary's obligation to defer to the political branches regarding their policy judgment as to national security issues. See ante at 360-62. Judge Niemeyer, however, does not explain how refusing to consider evidence pertaining to the President's purpose in promulgating the Proclamation advances that interest. The majority opinion relies on those statements not to "second-guess U.S. foreign policy," post at 353, but to determine what foreign policy the President intended his Proclamation to serve: the purpose on the face of the Proclamation of minimizing national security risks posed by countries that fail to maintain and share adequate information regarding their nationals-a policy from which the President repeatedly sought to distance himself, J.A. 791, 832-or the President's repeatedly stated purpose of banning Muslims. Only after using the President's statements to ascertain his foreign policy purpose behind the Proclamation's suspension on entry-to invidiously discriminate against Muslims-did this Court invalidate that policy. Importantly, the Government concedes that denying entry to a class of aliens based on invidious discrimination does not comply with the Constitution, Oral Arg. Rec. 11:35-12:20, meaning that to the extent this Court "second-guesses" the President's foreign policy determination set forth in the Proclamation, it does so in accordance with the Government's own understanding of the Constitution.
By seeking to determine the President's true purpose behind the Proclamation's ban on entry, the majority opinion arguably more effectively respects the President's policy judgments because it seeks to determine and evaluate the President's own policy determination, not the policy rationale of the President's unelected subordinates and attorneys, with which the *347President has repeatedly expressed disagreement. To be sure, this Court ultimately concludes that the President's actual purpose behind the Proclamation's suspension on entry contravenes the Constitution-a legal conclusion with which the Government appears to agree. Oral Arg. Rec. 11:35-12:20. But we do so by considering the policy the President actually sought to advance , not by considering policy rationales with which the President has expressed disagreement. In doing so, we afford the President the respect to which he is entitled as the unitary executive he is-the constitutional officer with sole and final authority to establish executive branch foreign policy and to deny entry to classes of aliens under Section 1182(f), in particular.
Failing to ascertain and address the President's actual purpose in promulgating his Proclamation-as Judge Niemeyer proposes we do-would raise other constitutional problems. In particular, ruling on the legality of the Proclamation without considering the President's actual-and widely proclaimed-purpose would "blur[ ] the lines of political accountability." Nat'l Fed. of Indep. Business v. Sebelius ,
Rather than addressing the President's actual purpose in promulgating his Proclamation, Judge Niemeyer appeals to facts that do not exist and then draws upon those facts to argue that the majority opinion undertakes a forbidden intrusion on our constitutional structure. In particular, Judge Niemeyer claims that "if the United States were to enter into a state of war with a foreign nation or were attacked by foreigners, their preferred construction would wreak havoc by precluding entry restrictions that would be necessary in such a time of crisis." Post at 370. But those are not the facts of this case. Congress has not declared war against any of the countries subject to the ban on entry. Nor have any of those countries attacked the United States. Accordingly, the scope of the President's authority under Section 1182(f) or the Constitution to exclude foreigners in a time of war or in response to an attack is not at issue.
Under the undisputed facts of this case, Judge Niemeyer's separate opinion fashions a legal barrier to the consideration of evidence establishing the President's goal of invidiously discriminating against Muslims. Put differently, Judge Niemeyer relies on a novel evidentiary rule to "reconstruct" the facts of this case so as to elide the difficult facts the majority correctly confronts. To that end, applying his own evidentiary rule, Judge Niemeyer nowhere addresses, for example, statements by the drafter of the first iteration of the travel ban, which explained that the President's purpose behind banning nationals from the predominantly Muslim countries-nearly all of which are subject to the Proclamation's indefinite suspension on entry-was to discriminate against Muslims. J.A. 808-10, *348815-16. Judge Niemeyer nowhere addresses the President's repeated statements expressing disagreement with the policy rationales upon which the Government and his separate opinion rely. See, e.g. , J.A. 791. Judge Niemeyer nowhere addresses the numerous anti-Muslim statements made by the President before and after he took office, many of which the President directly tied to the travel ban. See, e.g. , J.A. 135, 311, 806, 814-20. And Judge Niemeyer nowhere addresses the President's retweeting of anti-Muslim videos created by an extremist political party that opposes Islam, and the Administration's express connection of those retweets to the Proclamation's ban on entry.
Thus, to avoid the result that inexorably follows from the legal rule that he concedes-that Section 1182(f) does not authorize the President to engage in invidious discrimination-and the application of that rule to the undisputed facts-that the President promulgated the Proclamation to advance his goal of banning Muslims-Judge Niemeyer creates a novel rule of evidence that permits the disregarding of undisputed facts. This "result-oriented" approach-under which the judiciary picks and chooses among facts and law to achieve a desired outcome, rather than confronts the facts and law as presented by the case-bears the hallmarks of what is widely decried as judicial activism. Lawrence v. Texas ,
Judge Niemeyer further argues that my conclusion that Congress did not authorize the President to engage in invidious discrimination in denying entry to classes of aliens has no basis in the language of the Section 1182(f). Post at 372. But, as explained above, my conclusion that Section 1182(f) does not authorize invidious discrimination flows from both (1) Section 1182(f) 's express requirement that the President find that admission of any class of excluded aliens would be "detrimental to the interests of the United States" and (2) the numerous specific bases for denying entry to aliens set forth by Congress in Section 1182, none of which authorize denying entry to classes of aliens based on invidious discrimination. See supra Part I.C.1. And even if the statutory language of Section 1182 did not support my construction, the Supreme Court has on numerous occasions read "implicit limitation[s]" into immigration statutes to avoid constitutional concerns. Zadvydas , 533 U.S. at 689,
Judge Niemeyer also suggests that holding that Section 1182(f) does not authorize the President to engage in invidious discrimination would impermissibly *349"create constitutionally based rights in aliens excludable under § 1182(f)... when they never heretofore had such rights." Post at 372. Again, Judge Niemeyer misstates the approach I take in construing Section 1182(f). Contrary to his characterization, I recognize that aliens "can claim few, if any, rights under the Constitution." See supra Part I.B. I nonetheless conclude that interpreting Section 1182(f) as authorizing invidious discrimination raises serious constitutional concerns because "when the President exercises [his authority to exclude aliens] based solely on animus against a particular race, sex, nationality, or religion, there is a grave risk-indeed, likelihood-that the constitutional harm will redound to individuals who can claim constitutional rights ." Id. (emphasis added). These rights include not being barred from marrying the partner of one's choice based solely on the partner's race, nationality, or religion, and not having one's race or religion be the subject of state-sanctioned discrimination. Id. My interpretation of Section 1182(f), therefore, is grounded in the rights of citizens and lawful residents, not aliens, as Judge Niemeyer claims.
At bottom, the approach taken by Judge Niemeyer is the same approach embraced by the Government to avoid the outcome that flows from application of the undisputed law to the President's undisputed statements of discriminatory intent. Just as the Government would have us ignore the President's very words demonstrating his goal of invidiously discriminating against Muslims, Judge Niemeyer would have us ignore as irrelevant the undisputed legal conclusion that Section 1182(f) does not authorize invidious discrimination.
The Government seeks the normative result of what "ought to be" rather than what "is." by displacing the President's undisputed policy goal with the policy judgments of his unelected subordinates. Likewise, following the evidentiary approach outlined by Judge Niemeyer creatively interjects the onus of national security so as to avoid confronting the more difficult question that arises from the undisputed facts establishing that invidious discrimination against Muslims lies at the heart of this case.
III.
In conclusion, invidious "discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States." Korematsu ,
One might argue, that as a matter of statistical fact , Muslims, and therefore nationals of the predominantly Muslim countries covered by the Proclamation, disproportionately engage in acts of terrorism, giving rise to a factual inference that admitting such individuals would be detrimental to the interests of the United States. Indeed, viewing the Proclamation in its most favorable light, that is the precisely the rationale underlying the indefinite suspension on entry. Setting aside the question of whether that factual finding is true, or even reasonable-which is, at best, highly debatable given the 150 million people in the predominantly Muslim countries subject to the suspension on entry and the 1.6 billion Muslims worldwide-that is precisely the inference that the Framers of the Constitution and the Reconstruction Amendments concluded *350was impermissible as a matter of constitutional law .
Even though the Constitution affords greater latitude to the political branches to draw otherwise impermissible distinctions among classes of aliens, the harm to core constitutional values associated with governmental exercise of invidious discrimination-and the potential harm to individuals who can claim constitutional rights stemming from the abridgement of those values-demands evidence of "careful and purposeful consideration by those responsible for enacting and implementing our laws" before such discrimination should be sanctioned by the judiciary. Greene ,
In emphasizing the larger constitutional problems raised by construing the Immigration Act as a delegation of authority to engage in invidious discrimination, we must not forget that the Constitution embraces equality to forestall highly personal harms. Plaintiff John Doe #4, a lawful permanent resident, seeks to be reunited with his wife, an Iranian national, whom the Proclamation indefinitely bars from entering the United States. As Justice Jackson explained when confronted with another broad delegation of congressional authority over immigration, "Congress will have to use more explicit language than any yet cited before I will agree that it has authorized [the President] to break up the family of [a lawful permanent resident] or force him to keep his wife by becoming an exile." Knauff ,
PAMELA HARRIS, Circuit Judge, with whom Judge Diana Gribbon Motz and Judge King join, concurring:
I agree with the majority that the plaintiffs are likely to succeed in their Establishment *351Clause challenge to the Proclamation, and with its judgment largely affirming the district court's preliminary injunction. I write separately to explain why I think it is appropriate to decide this case on constitutional grounds alone, saving for another day the more far-reaching questions raised by the plaintiffs' statutory claims.
Ordinarily, of course, when a case can be decided on purely statutory grounds, we will stop there, and avoid reaching constitutional questions that also might be presented. See Ashwander v. Tenn. Valley Auth. ,
First, this is not a case that can be decided on statutory grounds "without reference to questions arising under the Federal Constitution," Siler ,
On the merits, as well, the statutory inquiry in this case is deeply intertwined with questions of constitutional law. See Abourezk ,
*352Second, I believe this is "one of those rare occasions" where we may reverse our usual order of operations because "the constitutional issue is [more] straightforward" than the statutory issues presented. Klingler v. Dir., Dep't of Revenue ,
The majority's constitutional holding, on the other hand, applying the purpose prong of Lemon v. Kurtzman ,
This case is unusual in another respect, too. In the more typical Establishment Clause case, what is at issue is whether some action intended to show respect for religious belief or practice, like a public display of the Ten Commandments, see McCreary , 545 U.S. at 856,
Indeed, the prohibition on government acts based on "religious animosity," Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah ,
As compared to the statutory questions raised by this case, "the appropriate resolution of the constitutional issue" is reasonably clear. See Klingler ,
NIEMEYER, Circuit Judge, with whom Judge AGEE and Senior Judge SHEDD join, dissenting:
This case involves an Article III court's bold effort to second-guess U.S. foreign policy and, in particular, the President's discretionary decisions on immigration, implicating matters of national security. Our constitutional structure forbids such intrusion by the judiciary.
The President, acting on authority granted him by enactments of Congress and by Article II of the Constitution, issued Proclamation No. 9645 on September 24, 2017. The Proclamation imposed restrictions on the entry of aliens from eight countries that, following a comprehensive, global review, were found to have inadequate practices for providing information to U.S. immigration officials and to present a heightened risk of terrorism. The absence of such restrictions, the President determined, "would be detrimental to the interests of the United States."
The district court, looking behind the text of the Proclamation, concluded that the restrictions on entry were likely to be unenforceable because they were motivated by religious animus, in violation of the Establishment Clause of the Constitution, and because they contravened a provision of the Immigration and Nationality Act ("INA") prohibiting nationality-based discrimination in the "issuance of ... immigrant visa[s]."
Following the government's appeal to this court, the government filed a motion for an emergency stay of the injunction pending appeal, but a majority of our court failed to act on the motion. The Supreme Court, however, issued a stay pending review by this court and ultimately by it, by order dated December 4, 2017.
*354Without any adjustment of position based on the Supreme Court's issuance of the stay, the majority again marches straightway to its desired result. In concluding that the Proclamation violates the Establishment Clause, the majority simply reiterates the reasoning of the district court and its own reasoning from its decision on Executive Order 13,780, dated March 6, 2017, deeming irrelevant the significant differences between that order and the Proclamation, as well as the Supreme Court's vacatur of that decision. Without accepting the Proclamation's stated interest in national security, which the Proclamation explains in detail, the majority concludes that, based on comments made by the President during the presidential campaign and afterwards, the Proclamation cannot be enforced because it is a pretext for religious discrimination. In addition, the separate opinions supporting the majority's judgment construe the applicable INA provisions to have limitations not contained in the statutory text and then hold that the Proclamation violated those limitations.
The opinions of the district court and those supporting the majority's judgment are demonstrably wrong in virtually every material respect. They fail to recognize and address more than a century of jurisprudence explaining the deference federal courts owe to the political branches with respect to decisions to grant or deny foreign nationals entry into this country; they ignore and again fail to address the plain language of the Administrative Procedure Act on which the plaintiffs rely to allege a cause of action that it does not provide; they misconstrue the INA, effectively rewriting it to accord with their own policy choices and then concluding that the President violated the statute as so revised; they apply a novel legal rule that provides for the use of campaign-trail statements to recast later official acts of the President; and they utterly subvert longstanding Supreme Court precedents on the Establishment Clause. For these reasons, as explained herein, I would reverse the district court and vacate its injunction.
I. Statement of the Case
A. Background
On January 27, 2017, the President issued Executive Order 13,769, which restricted the entry of certain foreign nationals into the United States. Shortly thereafter, a district court in Washington State issued an order enjoining nationally the enforcement of several provisions of that order. See Washington v. Trump , No. 17-141,
Rather than challenge that decision further, the President issued a revised executive order on March 6, 2017, Executive Order 13,780, which directed the Secretary of Homeland Security to "conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA ... in order to determine that the individual is not a security or public-safety threat." Exec. Order 13,780 § 2(a). In furtherance of that *355effort, the Executive Order suspended for 90 days the entry of foreign nationals from six countries-Iran, Libya, Somalia, Sudan, Syria, and Yemen-with the stated purpose of reducing the "investigative burdens on relevant agencies" during the pendency of the worldwide review and mitigating the risk that dangerous individuals would be admitted before the government finished implementing "adequate standards ... to prevent infiltration by foreign terrorists."
As with the first executive order, Executive Order 13,780 was also promptly enjoined, first by a district court in Hawai'i and then by the district court in this case. See Hawai'i v. Trump ,
The Supreme Court granted certiorari in both cases and, pending its review, stayed the injunctions as to "foreign nationals who lack any bona fide relationship with a person or entity in the United States." Trump v. Int'l Refugee Assistance Project , --- U.S. ----,
Then, after the 90-day review period provided by Executive Order 13,780 had elapsed, the Supreme Court observed that the Order's suspension of entry had "expired by its own terms" and therefore the case no longer presented a live case or controversy. Trump v. Int'l Refugee Assistance Project , --- U.S. ----,
On September 24, 2017, the President issued Proclamation No. 9645, which is at issue in this appeal, entitled, "Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats." The Proclamation recounted how the worldwide review prescribed by Executive Order 13,780 culminated with the submission to the President, on July 9, 2017, of a report from the Department of Homeland Security ("DHS"), which established a "baseline" for the types of information required to determine whether a *356foreign national should be permitted to enter the United States. Procl. § 1(c). That baseline, which was developed by DHS in consultation with intelligence and foreign-affairs officials from other executive-branch Departments, included three categories of criteria germane to "support[ing] the United States Government's ability to confirm the identity of individuals seeking entry ... and ... assess[ing] whether they are a security or public-safety threat":
(i) Identity-management information .
The United States expects foreign governments to provide the information needed to determine whether individuals seeking benefits under the immigration laws are who they claim to be. The identity-management information category focuses on the integrity of documents required for travel to the United States. The criteria assessed in this category include whether the country issues electronic passports embedded with data to enable confirmation of identity, reports lost and stolen passports to appropriate entities, and makes available upon request identity-related information not included in its passports.
(ii) National security and public-safety information.
The United States expects foreign governments to provide information about whether persons who seek entry to this country pose national security or public-safety risks. The criteria assessed in this category include whether the country makes available, directly or indirectly, known or suspected terrorist and criminal-history information upon request, whether the country provides passport and national-identity document exemplars, and whether the country impedes the United States Government's receipt of information about passengers and crew traveling to the United States.
(iii) National security and public-safety risk assessment.
The national security and public-safety risk assessment category focuses on national security risk indicators. The criteria assessed in this category include whether the country is a known or potential terrorist safe haven, whether it is a participant in the Visa Waiver Program established under section 217 of the INA, 8 U.S.C. 1187, that meets all of its requirements, and whether it regularly fails to receive its nationals subject to final orders of removal from the United States.
Id .
The Proclamation then described how DHS had "collected data on the performance of all foreign governments" relative to the baseline, Procl. § 1(d), and evaluated those data to determine that 16 countries were "inadequate" with respect to their identity-management protocols, information-sharing practices, and security-risk factors and that another 31 countries were "at risk" of becoming inadequate, id . § 1(e). It also explained how the State Department thereafter followed up on DHS's evaluation by "conduct[ing] a 50-day engagement period to encourage all foreign governments, not just the 47 identified as either 'inadequate' or 'at risk,' to improve their performance with respect to the baseline." Id . § 1(f). As a result of that engagement, many foreign governments improved their performance significantly. For example, 29 provided DHS with exemplars of their travel documents, and 11 agreed to share information on known or suspected terrorists.
As the Proclamation noted, following the engagement period, DHS concluded that the governments of Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen *357remained "inadequate" so as to warrant restrictions on the ability of their nationals to enter the United States. Procl. § 1(g). Iraq was likewise deemed "inadequate," but DHS concluded that entry restrictions with respect to Iraqi nationals were not warranted because, among other reasons, of the Iraqi government's "close cooperative relationship" with the United States and the significant presence of American military forces there. Id . DHS recommended instead that Iraqi nationals seeking entry be subject to "additional scrutiny."
The Proclamation stated that the President evaluated DHS's recommendations with the aid of various members of his Cabinet and White House staff, including the Secretary of State, the Secretary of Defense, and the Attorney General, see Procl. § 1(h), and ultimately decided to impose certain restrictions on the entry of individuals from the eight countries, see
The restrictions, as set forth in Section 2 of the Proclamation, vary by country based on the findings made as to that country. Three countries-Iran, North Korea, and Syria-were found inadequate under the DHS baseline, and the entry of all of their nationals, either as immigrants or nonimmigrants, was suspended. See Procl. § 2(b)(ii), (d)(ii), (e)(ii).
The Proclamation's restrictions were made applicable only to foreign nationals of the eight countries who were outside the United States and who did not have a valid visa or comparable travel document. See Procl. § 3(a); see also id . § 3(b) (enumerating exceptions to the Proclamation's entry restrictions). Moreover, the restrictions were made waivable by U.S. immigration officials in cases where an affected foreign national demonstrates that denying him entry would cause him undue hardship, that his entry would not pose a threat to national security or public safety, and that his entry would be in the national interest. See id . § 3(c); see also
Finally, the Proclamation required the Secretary of Homeland Security, in consultation with other Cabinet officers, to assess the circumstances of the eight countries on a regular basis (every 180 days), taking into account any change in their performance relative to the DHS baseline, and to recommend whether the restrictions should be modified or continued. See Procl. § 4.
B. Proceedings
Shortly after the Proclamation issued and before the effective date of many of its provisions, 23 individuals and 7 organizations challenged it in three civil actions (later consolidated), seeking injunctive relief, including preliminary injunctive relief. They named as defendants President Trump, several Cabinet officers and other high-ranking officials, DHS, the Department of State, and the Office of the Director of National Intelligence.
The individual plaintiffs are U.S. citizens and lawful permanent residents who have one or more relatives who are nationals of one of the eight countries subject to the Proclamation's entry restrictions. These plaintiffs seek to have their relatives, who are currently abroad, enter the country on a U.S. visa. Although they and their relatives are at varying stages in the visa issuance process, many have not received a valid immigrant or nonimmigrant visa.
*359Four of the organizational plaintiffs-the Middle East Studies Association of North America ("MESA"), the Yemeni-American Merchants Association ("YAMA"), Iranian Alliances Across Borders ("IAAB"), and the Iranian Students' Foundation ("ISF")-primarily organize events for their constituencies or otherwise advocate on their behalf. MESA represents more than 2,400 students and faculty around the world who focus on Middle Eastern studies; YAMA protects its members from harassment and assists them with immigration issues; IAAB organizes youth camps and conferences for individuals who are part of the Iranian diaspora; and ISF, an affiliate of IAAB, convenes events for approximately 30 Iranian-American students at the University of Maryland. The three remaining organizational plaintiffs-the International Refugee Assistance Project ("IRAP"), HIAS, Inc., and the Arab-American Association of New York ("AAANY")-primarily provide legal services to clients. IRAP provides legal services to displaced persons; HIAS serves refugees by, among other things, assisting them with resettlement; and AAANY provides legal and other services to the Arab-American and Arab immigrant community in New York City.
The district court, on the request of the plaintiffs, ordered expedited briefing and argument on the plaintiffs' motion for a preliminary injunction, and on October 17, 2017, the court granted the plaintiffs' motion in substantial part, entering a nationwide preliminary injunction based upon a 91-page opinion. The court, concluding that the plaintiffs were likely to succeed in showing that the Proclamation violated the INA and the Establishment Clause, enjoined enforcement of the Proclamation's entry restrictions as to foreign nationals-except those from North Korea and Venezuela-who have "a credible claim of a bona fide relationship with a person or entity in the United States."
In its opinion, the district court rejected the government's arguments that the plaintiffs lacked standing to sue and that a decision of the political branches to exclude aliens is generally not subject to judicial review. Regarding the latter point, the court explained that because the plaintiffs had not challenged "individual visa decisions by consular officers, but the overarching travel ban policy imposed by the Proclamation," the rule of nonreviewability did not apply. Accordingly, it proceeded to address the merits of the plaintiffs' claims.
As to the INA, the court determined that, while the plaintiffs had failed to show that the Proclamation exceeded the scope of authority granted by
As to the plaintiffs' Establishment Clause claims, the district court agreed that its analysis was controlled by Kleindienst v. Mandel ,
From the district court's entry of the preliminary injunction, the government filed this appeal. The plaintiffs cross-appealed, contending that the district court's injunction should not have excluded from its scope "individuals lacking a credible claim of a bona fide relationship with a person or entity in the United States."
II. Threshold Barriers
A. Separation of Powers
The Supreme Court has long recognized a constitutionally grounded division of authority among the departments of government such that matters of foreign policy and, in particular, immigration policy as to aliens abroad are committed exclusively to the political branches as aspects of national sovereignty. See, e.g. , Fiallo v. Bell ,
The exclusion of aliens is a fundamental act of sovereignty. The right to do so stems not alone from legislative power but is inherent in the executive power to control the foreign affairs of the nation. When Congress prescribes a procedure concerning the admissibility of aliens, it is not dealing alone with a legislative power. It is implementing an inherent executive power.
Thus, the decision to admit or exclude an alien may be lawfully placed with the President, who may delegate the carrying out of this function to a responsible executive officer.... The action of the executive officer under such authority is final and conclusive .
United States ex rel. Knauff v. Shaughnessy ,
For over 100 years, the Supreme Court has unwaveringly adhered to this position. See, e.g ., Chae Chan Ping v. United States ,
Thus, beginning with its earliest immigration decisions, the Court established a principle that "leav[es] essentially no room for judicial intervention in immigration matters." Castro v. U.S. Dep't of Homeland Security ,
To be sure, the Court has infrequently engaged in narrow judicial inquiries into government decisions to exclude foreign nationals when plaintiffs with ties to the United States have asserted violations of their individual constitutional rights. But even in the few instances where it has done so, the Court has upheld the political branches' essentially exclusive exercise of authority in this area, reaffirming the core *362principle of nonreviewability as to aliens abroad. See Mandel ,
Simply stated, the plaintiffs cannot obtain judicial review of their claims, given the Supreme Court's longstanding immigration jurisprudence, which prohibits courts from playing any role in reviewing the political branches' decisions to deny entry to aliens abroad-unless the political branches have themselves provided for such a judicial role in the clearest terms, see Mezei ,
The district court failed to acknowledge the scope of the structural limitation on its role with respect to immigration matters-recognizing only a doctrine of nonreviewability with respect to individual visa decisions by consular officers. But it nonetheless purported to rely on Mandel to justify its entry into the prohibited field. In doing so, however, it misconstrued and reconstructed the holding of that case.
The Mandel Court held that "when the Executive exercises ... power [delegated by Congress to exclude aliens abroad] negatively on the basis of a facially legitimate and bona fide reason , the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests " of U.S. citizens.
In Mandel , Ernest Mandel, a Belgian citizen, was denied a nonimmigrant visa to enter the United States to participate in conferences and to give speeches. In denying his admission to the United States, the Attorney General relied on
Despite the Court's recognition of the professors' First Amendment rights and the fact that Mandel's exclusion implicated those rights, see Mandel ,
Then the Mandel Court, setting aside the question of whether the Attorney General's denial of a waiver violated the First Amendment, forbade judges from interfering with the Executive's "facially legitimate and bona fide" exercise of its immigration authority.
We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
Id .
Since deciding Mandel , the Court has consistently reaffirmed and applied its holding. In Fiallo , the Court declined to scrutinize a statute that gave different immigration status to a child born out of wedlock depending on whether it was the child's mother or father who was a citizen or lawful permanent resident. Although that statute involved two suspect classifications-gender and legitimacy-the Court, citing Mandel , nonetheless concluded that "it is not the judicial role in cases of this sort to probe and test the justifications" of immigration policies. Id . at 799,
And these principles were reiterated more recently in Justice Kennedy's concurring opinion in Din . There, the Court considered a suit by a U.S. citizen who alleged that the government violated the Due Process Clause by denying her husband's visa application without adequate explanation, providing only a citation to the statutory provision under which the visa was denied. Justice Kennedy, writing for himself and Justice Alito to provide the fourth and fifth votes in favor of the government, *364stated that "[t]he reasoning and the holding in Mandel control here" and that Mandel 's reasoning "has particular force in the area of national security." Din , 135 S.Ct. at 2140 (Kennedy, J., concurring in the judgment). He concluded that "respect for the political branches' broad power over the creation and administration of the immigration system" meant that, because the government had provided Din with a facially legitimate and bona fide reason for its action, Din had no viable constitutional claim. Id . at 2141.
The holding of Mandel ineluctably requires that we reject the district court's construct of it. Here, as in Mandel , Congress delegated broad power to the executive branch to regulate the entry of foreign nationals. Compare
The plaintiffs provide no coherent basis for their assertion that their claims can escape the force of Mandel . They do argue that Mandel 's holding does not apply to claims under the Establishment Clause, but they are unable to point to any case in which the Supreme Court has ever suggested the existence of such a limitation. Indeed, Mandel expressly stated that legitimate First Amendment claims could not override the political branches' authority to exclude aliens, and, of course, the Establishment Clause is a component of the First Amendment. Absent any case supporting plaintiffs' position, we are not now at liberty-nor was the district court-to craft out of whole cloth exceptions to controlling Supreme Court precedents.
Not to be deterred, the district court reconstructed Mandel 's clear holding, asserting that "if there is a particularized showing of bad faith, a court should then 'look behind' the action to evaluate its justification." Thus, rather than determining from the face of the Proclamation whether the reasons given for the entry restrictions were legitimate and bona fide, which would preclude a "look behind" it for extrinsic evidence of bad faith, the court looked behind it first to conclude that the Proclamation was not bona fide. With this twist of Mandel , the court then reviewed candidate Trump's campaign statements, as well as his later statements and tweets, and concluded that the primary purpose of Executive Order 13,780 and Proclamation 9645 was "to effect the equivalent of a Muslim ban," justifying the plaintiffs' allegation that the "Proclamation is not bona fide." The court stated that even though the Proclamation is on its face legitimate and provides reasons rooted in national security, because the plaintiffs have "plausibly alleged" bad faith, it was no longer bound to defer to the Proclamation's stated purpose. It thus casually dismissed the controlling principles of Mandel and its progeny. And the majority opinion adopts the district court's approach in full.
If the district court's understanding, as well as the majority's, were shared by the Supreme Court, the results in Mandel , Fiallo , and Din would have been different, because in each of those cases, the plaintiffs alleged bad faith with at least as much particularity as do the plaintiffs here. In Mandel , the allegations were such that Justice Marshall, writing in dissent, observed *365that "[e]ven the briefest peek behind the Attorney General's reason for refusing a waiver in this case would reveal that it is a sham."
In sum, the district court failed to address, indeed even to recognize, the limited role of courts in reviewing the discretionary actions of the Executive in matters of immigration, and no further analysis should now be necessary for reversing its injunction. And the opinions supporting the majority's judgment do the same, even to a greater extent, blurring the role of the Executive in the context of foreign policy and its role in executing domestic law. Ignoring these realities of our constitutional structure, these opinions elevate the judgment of Article III courts over that of the President, violating deeply seated separation of powers principles.
B. Administrative Procedure Act
Perhaps recognizing the principle that judicial review of decisions to exclude aliens abroad is generally unavailable unless Congress expressly and clearly provides otherwise, see Mezei ,
While the APA provides judicial review of "agency action" generally,
First , the INA does not provide the plaintiffs with any cause of action; rather, its amendments evince congressional intent to preclude review for the claims they seek to assert. In 1961, after the Supreme Court had held that an alien who was physically present in the United States could, under the APA, bring a declaratory judgment action to obtain a declaration that he was not excludable, see Brownell v. We Shung ,
Second , the Proclamation is not an "agency action" that is subject to review under the APA.
[W]e find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion. As the APA does not expressly allow review of the President's actions, we must presume that his actions are not subject to its requirements.
Id . at 800-01 (citation omitted). The district court agreed that the government's argument on this point "ha[d] merit." It concluded, however, that the officials and federal agencies named as defendants apart from the President were within the scope of the APA, and, because they were charged with implementing the Proclamation, they could be the subject of an APA action challenging the Proclamation. This assertion, however, was dubious because it is ultimately not the Proclamation's enforcement against aliens that has been challenged, but rather its authority and issuance, which are attributable to the President alone.
Third , the APA precludes review of agency action "committed to agency discretion by law."
Fourth , and most importantly, the APA explicitly preserves existing doctrines sounding in judicial restraint-including the principle of nonreviewability described previously-by providing that "[n]othing herein ... affects other limitations on judicial review or the power or duty of the court to ... deny relief on any other appropriate legal or equitable ground."
The district court attempted to bypass this unreviewability doctrine by limiting it to "individual visa decisions by consular officers," as opposed to a "broader policy on alien entry," like the one applied in the Proclamation. But in doing so, as noted above, the court failed to recognize that the nonreviewability of visa determinations by consular officers stems from the antecedent principle articulated time and again in the Supreme Court's immigration cases: that determining who may enter the Nation's borders-and who may not-bears directly on our national sovereignty, is an inherently political judgment, and has accordingly been entrusted by the Constitution to the political branches. Moreover, the effect of the district court's conclusion would be untenable. A court would accord absolute deference to decisions of consular officers-subordinate officials who implement executive and legislative authorities, but are far removed from their source-while permitting judges to interfere with the decisions of Congress and the President regarding the same subject. This would upend the settled understanding of the separation of powers, and with it over 100 years of Supreme Court jurisprudence.
III. INA Claims
On the merits, the plaintiffs contend that the Proclamation exceeds the scope of authority granted by §§ 1182(f) and 1185(a) or otherwise violates them. They also contend that the Proclamation's restrictions on the entry of nationals from eight countries violates
Explaining the repeated use by past Presidents of §§ 1182(f) and 1185(a) to ban a particular country's nationals from entry into the United States, whether possessing visas or not-for example, President Carter's orders authorizing the imposition of entry restrictions on Iranian nationals, Exec. Order No. 12,172,
The district court concluded that the plaintiffs were likely to succeed on their claim that the Proclamation violated § 1152(a)(1)(A), construing that provision as a limitation on the President's power to suspend alien entry, but that they would not likely succeed on their claims based on § 1182(f), even though it concluded that § 1152(a)(1)(A) constricts the President's authority under § 1182(f). The court stated that it would be "meaningless" for a foreign national to receive a visa only to subsequently be deemed inadmissible and noted further that the entry of immigrants and the issuance of visas "usually go hand-in-hand." The court also found it problematic that the Proclamation had no "specified end date and no requirement of renewal," asserting that nationality-based denials of entry of "limited duration" would be less likely to discriminate in violation of § 1152(a)(1)(A). The court acknowledged, however, that a President could "arguably" deny the entry of all nationals from a particular country under § 1182(f) -even with the effect of precluding immigrant visas based on nationality-if the authority is exercised "during a specific urgent national crisis or public health emergency." It gave as an example President Reagan's 1986 decision to bar the entry of Cuban nationals.
The government contends that the district court erred in reading § 1152(a)(1)(A) to override the President's distinct authority under §§ 1182(f) and 1185(a)(1), "especially in light of the statutory deference afforded to the President, contrary historical practice, and serious constitutional concerns raised by that interpretation." It argues that, as a matter of statutory construction, the two provisions can be read to function harmoniously when one recognizes that § 1182(f) authorizes barring the entry of aliens based on nationality, whereas § 1152(a)(1)(A) bars nationality discrimination in the issuance of immigrant visas -two distinct concepts. It points out that, under the structure of the INA, even persons having visas can still be barred from entry into the United States, as all entering aliens must satisfy the requirements both for a visa and for entry. Moreover, it notes that in enacting § 1152(a)(1)(A), Congress intended to eliminate the country-quota system as to those aliens otherwise eligible for visas, "not to modify the eligibility criteria for admission or to limit pre-existing provisions ... addressing entry," such as § 1182(f). Opening Brief at 36 (citing H.R. Rep. No. 89-745, at 12 (1965) ("Under this [new] system, selection from among those eligible to be immigrants ... will be based upon the existence of a close family relationship to U.S. citizens or permanent resident aliens and not on the existing basis of birthplace or ancestry") (emphasis added) and S. Rep. No. 89-748, at 13 (1965) (similar) ). Finally, the government points to the use of §§ 1182(f) and 1185(a)(1) by past Presidents to exclude nationals from particular countries, such as President Carter's 1979 and 1980 Executive Orders restricting Iranians and President Reagan's 1985 Proclamation barring Cubans, among others.
I conclude, as to the plaintiffs' § 1152(a)(1)(A) claim, that the district court's interpretation of the INA should be rejected as it creates conflict between §§ 1152(a)(1)(A) and 1182(f) when none had previously existed. A more complete reading of the INA demonstrates that the two provisions can be construed to give full effect to both without conflict.
Under the INA, to obtain admission to the United States, a foreign national must normally possess a valid immigrant or nonimmigrant visa. See
Nothing in this chapter shall be construed to entitle any alien, to whom a visa ... has been issued , to be admitted [to] the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible under this chapter, or any other provision of law. The substance of this subsection shall appear upon every visa application.
In reaching its conclusions, the district court erroneously collapsed the concept of entry with the concept of visa issuance , linking the two such that it could not thereafter read § 1152(a)(1)(A) and § 1182(f) harmoniously. The opinions in support of the majority's judgment do the same. For instance, Chief Judge Gregory concludes that § 1152(a)(1)(A)"controls and limits whatever authority the President has under § 1182(f)" and therefore that the Proclamation violates § 1152(a)(1)(A) because it "operates by categorically denying the issuance of visas ." Ante at 304 (emphasis added). Judge Keenan states similarly, construing the provisions as being "intertwined" such that they are in tension with one another and then concluding that § 1152(a)(1)(A)"governs" as it is "the later-enacted and more specific provision." Ante at 318.
Moreover, to rationalize its desired result, the district court, as well as the opinions supporting the majority's judgment, had to construe the text of § 1182(f) in a manner that contorted its unambiguous *370language. For instance, the district court concluded that the language of § 1182(f) requires that the President impose a "specified end date," a conclusion that Judge Keenan also reaches. See ante at 313. Yet, the statutory language does not support such a construction; it provides that the Proclamation may be issued "for such period as [the President] shall deem necessary."
The district court also found it necessary to create an exception to its interpretation that § 1152(a)(1)(A) constricts the authority conferred by § 1182(f) in order to accommodate the conceded reality that the President has the power to exclude aliens based on nationality "during a specific urgent national crisis or public health emergency." Recognizing as legitimate the repeated exercise of that authority by past Presidents, the court attempted to harmonize its construction that § 1152(a)(1)(A) constricts § 1182(f) by adding the "crisis" exception. Chief Judge Gregory does the same. See ante at 305 (suggesting the possibility of "a narrow exception to § 1152(a)(1) that allows national bans under extraordinary circumstances"); ante at 296 (acknowledging in his interpretation of § 1182(f) the President's authority to exclude nationals during an "exigency"). Alternatively, however, he seeks to distinguish the prior proclamations and executive orders that excluded nationals of particular countries. See ante at 304-05. These efforts amount to a clumsy attempt to avoid the plain statutory language that authorized those orders.
On a larger scale, neither the plaintiffs nor the opinions supporting the majority's judgment seriously address the overriding constitutional problem raised by their construction of §§ 1152(a)(1)(A) and 1182(f). As a clear example, if the United States were to enter into a state of war with a foreign nation or were attacked by foreigners, their preferred construction would wreak havoc by precluding entry restrictions that would be necessary in such a time of crisis. Their interpretation ignores the constitutional separation-of-powers problem raised by this simple example and thus unwittingly highlights the deference that courts must give to the political branches in foreign relations and immigration matters.
In a further effort to rationalize their desired outcome, the opinions supporting the majority's judgment also interpose new requirements and limitations into § 1182(f) itself, leading to their conclusion that the President violated the new requirements and limitations. This mode of analysis is unprecedented.
For instance, Chief Judge Gregory concludes that he must adopt a narrower construction of § 1182(f) than is written to save it from a serious risk of invalidation because of its "breathtaking delegation to the President of virtually unconstrained power." Ante at 291. He thus limits the scope of § 1182(f) to authorize only the exclusion of "(1) foreign nationals whose individual conduct or affiliation makes their entry harmful to national interests *371for reasons unanticipated by Congress and (2) foreign nationals in response to a foreign-affairs or national-security exigency." Ante at 296; see also ante at 299-300. Without his created limitations, as he asserts, § 1182(f) would have the unconstitutional effect of allowing the President "to dramatically reorganize the domestic affairs of broad swathes of Americans." Ante at 291. And while he recognizes that Congress itself has such power, he does not accept that Congress could intend to give the President the authority that it did in § 1182(f) or that the President shares in that power through Article II of the Constitution. But see Knauff ,
Chief Judge Gregory also expands his newfound limitation-that § 1182(f) only authorizes the President to restrict entry of aliens by nationality in response to an exigency-adding that the exigency must be "demonstrated " by the President. Ante at 299-300 (emphasis added). Then, second-guessing the President's explanations based on national security risks, as stated in the Proclamation, he concludes that there was "no apparent exigency justifying immediate, categorical exclusion of foreign nationals ... because [the Proclamation] does not identify any new event or factual circumstance that Congress has not already considered via legislation." Ante at 300. In effect, Chief Judge Gregory rejects the Proclamation's stated reasons for imposing entry restrictions, concluding that the President did not comply with § 1182(f), not because the President did not make findings or give reasons, but because Judge Gregory does not share in the President's view of what findings or reasons justified imposing restrictions on alien entry. Nothing in § 1182(f), however, supports this second-guessing of the President's foreign policy determinations.
Judge Keenan similarly reads new requirements and limitations into § 1182(f). Unwilling to give the statutory language its due, she limits § 1182(f) 's authority to exclude "aliens or classes of aliens" to a more restricted authority to exclude aliens based only on the "class members' individual circumstances or actions." Ante at 314 (emphasis added). She rejects, in particular, the broader authority to exclude a class of aliens that might be defined as coming from a particular country where the "country's conditions relating to the criteria of identity-management, information-sharing, and terrorist activity" were inadequate, as was done in the Proclamation. Id . In doing so, she does not recognize that her interpretation precludes even the exclusion of nationals from a country at war with the United States.
Judge Keenan also reads into § 1182(f) the limitation that the "findings" required by that provision cannot include the fact that nationals from a particular country pose a greater risk based on the country's "faulty [security] protocols," reasoning that such a finding would fail to assess the risk of "individuals. " Ante at 316-17. Faced with prior presidential proclamations and executive orders that did indeed exclude nationals as a class, she attempts to distinguish them by noting, for instance, that they were limited to the defined period of the then-pending crisis. See ante at 315-16. But that explanation does not address the exclusion by previous Presidents of nationals , not individuals based on their individual circumstances.
*372Judge Wynn's reconstruction of § 1182(f) has even wider implications and is yet less relevant to the issues before us. He concludes that the Proclamation violates § 1182(f) because it is "driven by anti-Muslim bias," ante at 322 (internal quotation marks omitted), and because Congress never authorized such "invidious discrimination" in § 1182(f), ante at 334-35. While it is surely correct that Congress did not authorize "invidious discrimination" in conferring authority on the President in § 1182(f), it did authorize him to "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."
In sum, the district court, Chief Judge Gregory, Judge Keenan, and Judge Wynn disagree with Congress's delegation of authority to the President; they disagree with the Proclamation's exercise of such authority; they find more palatable their "narrower construction" to yield a more limited delegation; and, to give effect to their preferred construction and ultimately their preferred result, they rewrite the statute to insert limitations. Doing that is not a legitimate judicial role.
IV. Establishment Clause Claim
In pursuing their freestanding Establishment Clause claim before the district court, the plaintiffs relied on this court's prior decision enjoining enforcement of Executive Order 13,780 -even though that decision was vacated by the Supreme Court-to assert that "the Proclamation is an attempt to implement the [President's] promised Muslim ban." They urged the district court to "look behind" the Proclamation, which is concededly neutral on its face, and to rely on the same statements of candidate Trump that provided the basis for the majority's earlier decision. The district court ruled as the plaintiffs urged, and the plaintiffs now contend that the district court correctly found that the purpose of the Proclamation is to express anti-Muslim animus and it thus violates the Establishment Clause, which "command[s] ... that one religious denomination cannot be officially preferred over another." Opening Brief at 53 (quoting Larson v. Valente ,
As explained above, the district court isolated the phrase "bona fide" from the Mandel standard and thereby permitted the plaintiffs, who could not refute that the Proclamation was on its face legitimate and bona fide, to present external evidence in an effort to impeach it. The district court summarized its view of the standard by stating that the plaintiffs need only make a particularized showing from external evidence of bad faith, regardless of what the Proclamation provides. Applying that standard, the district court concluded that the plaintiffs, by relying on the President's campaign-trail statements and other similar evidence, plausibly alleged that the Proclamation's stated reason was "not bona fide." The court then proceeded to apply what it deemed to be traditional Establishment Clause jurisprudence, emphasizing that "purpose matters" when assessing the validity of government action *373under the Establishment Clause (quoting McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky. ,
The district court's extraordinary analysis, which the majority fully adopts, suffers from at least three serious errors. First , as already explained, it misconstrued and misapplied the holding of Mandel to look behind the text of the Proclamation; second , in looking behind the text, it created and applied a new and unprecedented rule embracing a scope of relevant evidence that is both dangerous and unworkable; and third , its Establishment Clause analysis stretched the Supreme Court's holdings in this area far beyond their intended scope.
As to the first serious error, Mandel provides only a narrow slot of reviewability for immigration decisions regarding the exclusion of aliens abroad. But even as the Court recognized that the Mandel plaintiffs had presented a legitimate First Amendment claim, it concluded that the claim was unreviewable because the government's stated reason for excluding Mandel was valid on its face.
We hold that when the Executive exercises [congressionally delegated power to exclude aliens] negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.
Id . (emphasis added). The Court's reasoning was thus based on a facial assessment of the reasons given by the government and the conclusion that those reasons were facially legitimate and bona fide. Of importance to this case, the Mandel Court did not "look behind" the facial reason based on what the plaintiffs alleged. Id .
The only reason that the district court gave in this case for looking behind the Proclamation was the external evidence presented by the plaintiffs. Rather than first assessing the face of the Proclamation to determine whether its reasons were facially legitimate and bona fide, the district court bypassed that assessment to consider external evidence at the outset. In short, it stood the Mandel standard on its head.
Moreover, the district court never explained why the Proclamation's stated reasons of national security, based on the investigation of some 200 countries by executive agencies, were not legitimate and bona fide. None of the facts or conditions recited as reasons for the issuance of the Proclamation have been challenged as untrue or illegitimate. It is thus readily apparent that, without looking behind the Proclamation, there is simply no basis to argue or conclude that it had anything to do with religion.
The second serious error committed by the district court is just as plain. In "look[ing] behind" the Proclamation to campaign statements and other similar statements, the district court applied a new and totally unprecedented rule of evidence that is fraught with danger and impracticality.
Apart from violating established rules for interpreting unambiguous legal texts-whether statutes, regulations, executive orders, proclamations, or, indeed, contracts-reliance on campaign statements and similar evidence to impose a new *374meaning on unambiguous language is completely strange to judicial analysis. In the Establishment Clause context, moreover, the Supreme Court has warned against "judicial psychoanalysis of a drafter's heart of hearts." McCreary , 545 U.S at 862,
Because of their nature, campaign statements and other similar statements, including tweets, are unbounded resources by which to find intent of various kinds. They are often short-hand for larger ideas; they are explained, modified, retracted, and amplified as they are repeated and as new circumstances and arguments arise. And they are often susceptible to multiple interpretations, depending on the outlook of the recipient. A court applying this new rule would thus have free reign to select whichever expression of an official's developing ideas best supports its desired conclusion.
Moreover, opening the door to the use of campaign-trail statements and similar musings or tweets to inform the text of later executive orders has no rational limit. If a court, dredging through the myriad remarks of an officeholder, fails to find material to produce the desired outcome, what stops it from probing deeper to find statements from a previous campaign, or from a previous business conference, or from college?
And how would use of such statements take into account intervening acts, events, and influences? When a candidate wins the election to the presidency, he takes an oath of office to abide by the Constitution and the laws of the Nation. And he appoints officers of the government and retains advisors, usually specialized in their field. Is there not the possibility that a candidate might have different intentions than a President in office? And after taking office, a President faces external events that may prompt new approaches altogether. How would a court assess the effect of these intervening events on presidential intent without conducting "judicial psychoanalysis"?
At bottom, the danger of this new rule is that it will enable a court to justify its decision to strike down any executive action with which it disagrees. It need only find one statement that contradicts the official reasons given for a subsequent executive action and thereby pronounce that the official reasons were a pretext.
Moreover, the unbounded nature of the new rule will leave the President and his administration in an untenable position for future action. It is undeniable that President Trump will continue to need to engage in foreign policy regarding majority-Muslim nations, including those designated in the Proclamation. Yet, the district court's opinion presupposes that the Proclamation is tainted by prior campaign-trail statements and prior executive orders, clearly indicating that future actions might also be subject to the same challenges made today.
Finally, the new rule would by itself chill political speech directed at voters seeking to make their election decision. It is hard to imagine a greater or more direct burden on campaign speech than the knowledge that any statement made might be used later to support the inference of some nefarious intent when official actions are inevitably subjected to legal challenges.
*375As its third serious error, the district court held, on the merits, that the plaintiffs were likely to show that the Proclamation violates the Establishment Clause's requirement of religious neutrality because it was issued primarily for the President's subjective purpose of targeting Muslims. To be sure, when legitimately applying Establishment Clause jurisprudence, courts consider whether government action is indeed motivated by a secular, rather than a religious, purpose. See Lemon v. Kurtzman ,
But these generic standards are all the doctrinal support that the plaintiffs have mustered. Apart from the fact that the Supreme Court has never applied the Establishment Clause to matters of national security, foreign affairs, and immigration, in particular, it has invalidated only a few government actions based on a religious purpose, McCreary , 545 U.S. at 859,
First, for all of the weight that the plaintiffs, the district court, and the majority place on McCreary , they ignore that the McCreary Court confronted a facially religious government action-the display of the Ten Commandments in two county courthouses. The McCreary Court thus began with a presumption that the display was intended to promote religion. See 545 U.S. at 867-69,
In stark contrast, the district court here recognized that nothing on the face of the Proclamation speaks to religion. Under McCreary , therefore, it should have begun with the presumption that the Proclamation was neutral toward religion. In this circumstance, contrary extrinsic statements made prior to the Proclamation's issuance surely do not supplant its facially legitimate national security purpose. See McCreary , 545 U.S. at 865,
Nonetheless, the district court engaged in a review of the national security justifications given in the Proclamation and concluded that they were essentially a pretext or, at most, reflected a purpose secondary to the unstated objective of expressing anti-Muslim animus. This analysis, again, flies in the face of Mandel , Fiallo , and Din . Moreover, even within traditional Establishment Clause jurisprudence, it is an unprecedented overreach. It goes far beyond the Court's inquiry in McCreary , where the government offered a secular "litigating position" for a facially religious action, 545 U.S. at 871,
Moreover, the district court's lack of deference is particularly inappropriate where the government's secular purpose is related to national security-a subject, as the majority recognizes, on which we owe the Executive significant deference. See Humanitarian Law Project , 561 U.S. at 33-34,
Unless corrected, the district court's approach will become a sword for plaintiffs to challenge any facially neutral government action, particularly an action affecting regions dominated by a single religion. Government officials will avoid speaking about religion, even privately, lest a court discover statements that could be used to ascribe a religious motivation to their future actions. And, in the more immediate future, courts will be faced with the unworkable task of determining when this President's supposed religious motive has sufficiently dissipated so as to allow executive action toward the countries subject to the Proclamation or other majority-Muslim countries. The Establishment Clause demands none of these unfortunate and unprecedented results.
V
The public debate over the Administration's foreign policy and, in particular, its immigration policy, is indeed intense and thereby seductively tempts courts to effect a politically preferred result when confronted with such issues. But public respect *377for Article III courts calls for heightened discipline and sharpened focus on only the applicable legal principles to avoid substituting judicial judgment for that of elected representatives. It appears that the temptation may have blinded some Article III courts, including the district court and perhaps the majority of this court, to these obligations, risking erosion of the public's trust and respect, as well as our long-established constitutional structure.
In this context and for the results demanded by applicable law, I would reverse the district court and vacate its preliminary injunction.
Notably, Kaloudis found a basis for this clear outer limit on congressional delegations of discretionary authority to the executive branch in the Immigration Act well before Congress made explicit, in comprehensively amending the Immigration Act, that discrimination on the basis of race, sex, ethnicity, and nationality has no place in controlling immigration. See infra Part I.C.3.
Indeed, under Judge Niemeyer's evidentiary rule-which would bar consideration of any facts outside of the four corners of a presidential proclamation-courts could not consider statements made by the President made while signing the Proclamation .
Courts routinely rely on an actor's contemporaneous statements as to his intent in numerous other legal contexts as well. See, e.g. , S. Dakota Farm Bureau, Inc. v. Hazeltine ,
Judge Niemeyer's separate opinion maintains that in considering these undisputed facts, the majority opinion impermissibly "look[s] behind" the face of the Proclamation. Post at 373. But consideration of these undisputed facts does not require "look[ing] behind" anything. The President made his statements bearing on his intent to ban Muslims, reflecting his anti-Muslim animus, and expressing disagreement with the policy rationales relied on by the Government on Twitter and in press statements . See, e.g. , J.A. 135, 1497-99, 1502-03, 1508. Accordingly, the President sought to and did put his views and policy goals "out front" by disseminating them to millions, if not billions, of people. By contrast, Mandel -the case relied on by the separate opinion to justify its proposed evidentiary rule barring consideration of facts outside the four corners of the Proclamation-involved letters between the Department of State and the Immigration and Naturalization Service and attorneys for the alien denied entry.
Our country adheres to the rule of law in preserving core constitutional protections. Thus, when the President can identify no change in circumstances justifying an invidious encroachment on constitutional rights, a simple claim of potential harm to national security does not provide the President with unfettered authority to override core constitutional protections. See New York Times Co. v. United States ,
I have removed all internal alterations, citations, and quotation marks here and throughout unless otherwise noted.
For purposes of discussion, I assume that the "prolonged separation" claim is an injury sufficient to confer standing under the INA, as the district court held. See IRAP , 265 F.Supp.3d at 595-96.
Unlike its consideration of the INA claims, the district court did not analyze the organizational plaintiffs' Establishment Clause standing in their own right.
There are a number of exceptions to this description of the individual plaintiffs, but they are not material to the ensuing analysis. One of the plaintiffs, Mohammed Meteab, does not claim to have a relative who is a national of one of the eight countries identified by the Proclamation. Several plaintiffs have relatives who are nationals of one of the eight countries but who obtained a U.S. visa during the pendency of this case, or during the litigation concerning the preceding executive orders. At least two plaintiffs have relatives who, after so obtaining a visa, have now entered the United States. And one or more plaintiffs have relatives who have been denied visas and deemed ineligible for waivers pursuant to the Proclamation.
It is noteworthy that in a case challenging DHS's plan to rescind the immigration program known as Deferred Action for Childhood Arrivals ("DACA"), the Supreme Court recently granted the government relief from the district court's order to complete the administrative record, instructing the Ninth Circuit and the lower court to address first the threshold questions of whether the "determination to rescind DACA is unreviewable because it is 'committed to agency discretion,'
Dissenting Opinion
I agree with my dissenting colleagues insofar as they hold that the plaintiffs lack standing to assert their claims under the Immigration and Nationality Act. Accordingly, I do not reach the merits of those claims.
With regard to the plaintiffs' claim that Proclamation No. 9,645 likely violates the Establishment Clause of the United States Constitution, I believe they have standing to assert it. In my view, an American person or an American entity has standing to bring a colorable Establishment Clause claim in our courts when a close member of that person's family or a person with a legitimate connection to the American entity is seeking entry into the United States and is being denied entry solely because of religion. See Trump v. IRAP , --- U.S. ----,
Like my dissenting colleagues, however, I believe the plaintiffs' constitutional claims fail on the merits, and I would reverse the district court and vacate its preliminary injunction. President Trump issued Executive Order No. 13,769 (EO-1), on January 27, 2017, seven days after his inauguration. The President issued Executive Order No. 13,780 (EO-2) on March 6, 2017, in direct response to litigation that challenged EO-1. On its face, EO-2 suspended the entry of nationals from six Muslim-majority countries for 90 days. This temporary suspension was imposed to allow Executive officials time to conduct a worldwide review of the adequacy of information that foreign governments were providing about their nationals who applied for United States visas. See IRAP v. Trump ,
In the appeal involving EO-2, I voted to affirm the district court's issuance of a preliminary injunction on Establishment Clause grounds. My vote was based on the temporal proximity of EO-1 and EO-2 to the well-documented and religious-based statements about Muslims made by President Trump prior to and immediately after his inauguration; the absence of any demonstrated, meaningful study or consultation with the President's advisors prior to his issuance of these Orders; and the insufficient factual basis proffered by the Executive in support of its claim that the Order had a non-religious purpose. See Trump,
Unlike EO-1 and EO-2, in my view Proclamation No. 9,645 has sufficiently addressed these concerns. Although the factors that drove my prior decision are still relevant, I must now view them in the context of the investigation and analysis that the agencies acting on the President's behalf have completed, the consultation that has taken place between the President and his advisors, and the logical conclusions and rationale for the Proclamation that are documented therein. In light of the extreme deference that courts must always give the President in matters of foreign policy and national security, as well as the additional information before the court, I believe the balance of the equities no longer favors the plaintiffs. Therefore, I respectfully dissent.
AGEE, Circuit Judge, with whom Judge NIEMEYER and Senior Judge SHEDD join, dissenting:
I respectfully dissent. While I join fully in the excellent dissenting opinion of Judge Niemeyer, I write separately on the standing issue as to claims under the Establishment Clause.
I.
The United States Constitution extends to federal courts the power to adjudicate "cases" and "controversies." U.S. Const. art. III, § 2. "[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife ,
To show standing, a plaintiff has the burden to show (1) an injury-in-fact (2) caused by the defendant (3) that will likely be redressable by a favorable decision. Defenders of Wildlife ,
The opinions of the majority and district court hold that the plaintiffs have pled injuries caused by the Proclamation in the form of "prolonged separation from close family members" and stigmatization as a basis for Establishment Clause standing. Majority Op. 260; accord Int'l Refugee Assistance Project v. Trump (IRAP) ,
A.
The Establishment Clause of the First Amendment restricts the Government from "mak[ing any] law respecting an establishment of religion." U.S. Const. amend. I. In Valley Forge Christian College v. Americans United for Separation of Church & State, Inc. ,
Thus, on standing grounds, the Court rejected the claims in Valley Forge by those plaintiffs who "fail to identify any personal injury suffered by them as a consequence of the alleged constitutional error, other than the psychological consequence presumably produced by observation of conduct with which one disagrees."
Following Valley Forge , we elaborated on the basis for Establishment Clause standing in Suhre v. Haywood County ,
Later, in Moss v. Spartanburg County School District Seven ,
Against this jurisprudential backdrop, the plaintiffs in this case do not have standing to pursue their Establishment Clause claims as pled. The majority and district court conflate two separate and distinct injuries specific to two separate and distinct causes of action to support a finding of Establishment Clause standing. They do so by lumping the "prolonged separation from close family members" concept, Majority Op. 260; accord IRAP ,
In that regard, the Supreme Court has made it clear that each claim must be able to individually meet standing scrutiny. DaimlerChrysler Corp. v. Cuno ,
The district court held that the plaintiffs have standing for Establishment Clause purposes because the Proclamation would prolong their separation from their alien relatives, the same basis as standing for the plaintiffs' separate statutory claim under the INA. See IRAP , 265 F.Supp.3d at 595-99 (INA) ; id. at 599-602 (Establishment Clause). In doing so, the district court took pains to hold that "prolonged separation from close family members" is a cognizable injury under the INA. Id. at 595-96. However, without any meaningful discussion or citation to relevant authority, the district court-and now the majority-simply pronounce by diktat that this prolonged separation likewise constitutes a cognizable injury under the Establishment Clause . Neither cites any case applying the Establishment Clause in this fashion.
The district court relied on Legal Assistance for Vietnamese Asylum Seekers v. Department of State (LAVAS ),
Regardless of whether the D.C. Circuit's INA holding is correct, it at least logically flows from the INA's statutory construction and legislative history. Citizens and permanent resident aliens participate in the visa application process under the INA as sponsors of their foreign family members. See
Nonetheless, the district court in this case took that holding and made an inferential leap worthy of an Olympic long jumper. It reasoned that the prolonged separation of family members found under a statutory enactment transmogrifies into an injury for Establishment Clause purposes. This leap was made without citation to legal authority. Rather, the district court simply recited that the plaintiffs' alleged prolonged separation from family *382members constituted "personal contact with the Proclamation's alleged Establishment Clause violation," and then proceeded without preamble to its analysis of the claim of stigmatization injury as if the two were one and the same. IRAP , 265 F.Supp.3d at 600.
As cursory as the district court's "prolonged separation" holding is, the majority opinion is even weaker. The majority engages in no discussion, provides no citation to relevant authority, but simply pronounces an Establishment Clause injury. See Majority Op. 259-60, 261. That is simply an exercise by fiat in order to reach the merits of the plaintiffs' Establishment Clause claims. Indeed, there is no Establishment Clause jurisprudence from the previous two centuries that supports the proposition that "prolonged separation" constitutes an injury under the Establishment Clause.
Even assuming the plaintiffs may represent third-party interests under the INA, their INA standing provides no bridge to status under the Establishment Clause. See Davis v. FEC ,
Because the "prolonged separation" argument fails, the plaintiffs are left with stigmatization as their sole Establishment Clause injury. Notwithstanding the precedential cautions of Valley Forge , Suhre , and Moss , the district court held that the individual plaintiffs had standing because of the stigmatization they allege to have suffered by virtue of the Proclamation's purported anti-Muslim sentiment. For example, one plaintiff "understands the Proclamation to fulfill campaign promises to condemn her religion," while another declares that the Proclamation "made him feel like a second-class citizen." IRAP , 265 F.Supp.3d at 600. Other plaintiffs "feel condemned, stigmatized, attacked, or discriminated against as a result of the Proclamation." Id. at 601. The district court held that "[t]hese feelings of marginalization constitute an injury in fact in an Establishment Clause case." Id. In a related vein, the district court also held that the organizational plaintiffs had standing to bring Establishment Clause claims on behalf *383of their members.
But the stigmatization injuries the plaintiffs allege are insufficient alone to confer Establishment Clause standing. See Wright ,
To sustain the holding of the district court that the plaintiffs' generalized stigma grievances are sufficient to support standing would require a finding that anyone with some sense of personal affront could bring a suit challenging the Proclamation under the Establishment Clause. See Wright ,
At best, the plaintiffs claim that they have suffered indirectly from the Proclamation's alleged inherent-albeit invisible-condemnations of their alien family members' religion. Such a claim contravenes the Article III requirement that the plaintiffs "show that [they] ha[ve] sustained or [are] immediately in danger of sustaining some direct injury as the result of the challenged official conduct." City of Los Angeles v. Lyons ,
II.
For these reasons, I conclude that the plaintiffs do not have standing to bring *384their Establishment Clause claims. The district court and the majority err in holding otherwise. I respectfully dissent.
Proclamation No. 9645, Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats (the "Proclamation"),
The Government also argues that Plaintiffs' claims are not ripe. I adopt the Majority Opinion's ripeness analysis and conclude that the claims are ripe. Ante 261-63.
In fact, the Supreme Court has adjudicated similar claims on the merits. See Sale ,
"Designated Countries" throughout refers to the eight countries included in the Proclamation: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen.
The Government claims that any visa applicant who attended an interview and is awaiting administrative processing has already been denied a visa. Third Cross-Appeal Br. 8. But this is belied by the record. The relatives of IRAP Plaintiffs Shapour Shirani and Fakhri Ziaolhagh had both been interviewed and were told their visas were in "administrative processing." J.A. 603 (Shirani), 606 (Ziaolhagh). Both relatives subsequently received their visas. Notice 1, Dec. 6, 2017, ECF No. 160.
The Government argues that the D.C. Circuit undermined these holdings in Saavedra Bruno ,
Used in this way, a "cause of action" also differs from whether a plaintiff has stated a claim sufficient to survive a motion under Federal Rule of Civil Procedure 12(b)(6).
The Government also claims that the INA precludes judicial review. It is true that a suit cannot be brought under the APA if "statutes preclude judicial review" or if judicial review is otherwise unavailable.
As the Majority Opinion explains, that the travel restrictions were not fully implemented before December 8, 2017, is not critical to my analysis. Ante 263 n.10. The agencies had already taken the final steps necessary to implement the restrictions and were only kept from doing so by two nationwide injunctions, one of which this Court reviews here. See, e.g. , DHS Fact Sheet, supra ; State Department Statement, supra .
The Government claims that Plaintiffs cannot invoke this Court's inherent authority because the "APA governs suits challenging government actions," citing
The Government also argues that this Court's "equitable authority is constrained by 'express and implied statutory limitations.' " Third Br. 8-9 (quoting Armstrong , 135 S.Ct. at 1385 ). The Government neglects to mention what statutory limitations it believes constrain this Court's authority, and I can find none. As stated in Parts II.A and II.B, neither Congress nor the separation of powers has precluded this Court's exercise of jurisdiction here.
I concur with the majority opinion's ripeness analysis from Section III.A.2.
The Proclamation also cites
Although the term "suspend" also has been defined to encompass indefinite or permanent periods of time, see Black's Law Dictionary 1691 (3d ed. 1944), we do not focus exclusively on dictionary definitions of that term. As the plain meaning rule is an "axiom of experience," and not a rule of law, our analysis also draws on other evidence in determining Congress' intent. See Boston Sand & Gravel Co. v. United States ,
Moreover, the government embraces a sweeping view of the President's Section 1182(f) authority, a view that would require this Court to accept that the President's authority is broad enough to permit the indefinite halt on immigration entirely by barring the entry of all aliens or the permanent restoration of the national-origin quota system.
For example, President Clinton invoked Section 1182(f) to suspend entry of Sudanese government and military officials for their failure to comply with a United Nations Security Council Resolution. See Proclamation No. 6958,
The sole remaining order was President Reagan's restriction on Cuban immigrants that, for the reasons previously discussed, is distinguishable from the present Proclamation.
The INA does not define key elements of this requirement, such as "find" or "detrimental to the interests of the United States." See
When the President's action falls outside the zone of congressionally delegated authority, the President "can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Youngstown Sheet & Tube Co. v. Sawyer ,
However, I conclude that the injunction should not apply to nationals from Venezuela and North Korea, because the balance of the equities favors the government with respect to nationals from those two countries.
Though there are eight opinions filed in this matter, only one opinion represents the holding and judgment of the Court: Chief Judge Gregory's opinion holding that the Proclamation is in violation of the Establishment Clause.
Two of the remaining seven present dissenting views from the majority's holding: Judge Niemeyer writes a separate opinion of which the part that responds to the Court's holding on the Establishment Clause is properly recognized as a dissenting opinion from this Court's holding on the Establishment Clause. And Judge Agee writes an opinion to dissent from the majority's position on standing under the Establishment Clause.
Of the remaining five opinions, Judge Traxler writes an opinion agreeing with the majority opinion's constitutional standing analysis, but rejecting the majority's conclusion on the merits of Plaintiffs' Establishment Clause claim. And the other four opinions (filed by Chief Judge Gregory, Judge Keenan, myself, and Judge Harris) are separate opinions expressing minority views that do not represent the holding and judgment of this Court. They are perhaps properly characterized as being dicta proprium or minority opinions that are not essential to the disposition of the case before us. Likewise, that part of Judge Niemeyer's separate opinion in response to those four opinions is not a dissent to the majority opinion's holding.
The Government also asserts that the Proclamation's bar on entry is authorized by Section 1185(a)(1) of the Immigration Act, which authorizes the President to prescribe "reasonable rules, regulations, and orders," as well as "limitations and exceptions," governing the entry and departure from the United States.
Chief Judge Gregory's opinion also relies on the so-called "major questions" doctrine as a basis for concluding that the Proclamation's indefinite suspension on entry exceeds the President's authority under Section 1182(f). Ante at 291-92. That doctrine, which also is sometimes referred to as the "major rules" doctrine, holds that "an agency can issue a major rule-i.e., one of great economic and political significance-only if it has clear congressional authorization to do so." U.S. Telecom Ass'n v. Fed. Commc'ns Comm'n ,
Congress's and the President's constitutional power to control immigration-and authority to delegate that control-fundamentally differs in a time of war. Korematsu ,
By contrast, neither Section 1182(f) nor the current version of Section 1185(a) were enacted pursuant to or in accordance with a declaration of war or authorization of use of military force, nor does the Government or the Proclamation claim that the President issued the Proclamation pursuant to authority conferred by a congressional declaration of war or authorization of use of military force against the subject countries.
See Kerry v. Din , --- U.S. ----,
The Supreme Court's stay order necessarily indicated that the government made a "strong showing" that it was likely to succeed on the merits, Nken v. Holder ,
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.
(Emphasis added). And § 1185(a)(1) provides:
Unless otherwise ordered by the President, it shall be unlawful ... for any alien to depart from or enter ... the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.
The Proclamation makes an exception for certain Iranians who are seeking to enter the United States on nonimmigrant student and exchange-visitor visas but states that such individuals should "be subject to enhanced screening and vetting requirements." Id . § 2(b)(ii).