*1 COLLINS, Circuit Judge:
On October 4, 2019, the President of the United States issued Proclamation
No. 9945, entitled “Suspension of Entry of Immigrants Who Will Financially
Burden the United States Healthcare System, in Order [t]o Protect the Availability
of Healthcare Benefits for Americans. ” The Proclamation restricts entry of
immigrant visa applicants who cannot demonstrate that they either (1) will acquire
qualifying healthcare coverage within 30 days of entry or (2) have the ability to
*2
pay for reasonably foreseeable healthcare expenses.
See
Proclamation No. 9945,
84 Fed. Reg. 53991, 53992 (Oct. 9, 2019). In November 2019, the district court
granted a universal preliminary injunction blocking the implementation of this
Proclamation and denied the Government’s request for a stay pending appeal .
See
Doe #1 v. Trump
,
2019);
Doe #1 v. Trump
,
I
A
Under the Immigration and Nationality Act (“INA”) , 8 U.S.C. § 1101
et
seq.
, an alien seeking lawful permanent residence in the United States generally
must apply for and be issued an immigrant visa.
Id
. § 1181(a). The process for
acquiring this type of visa is lengthy. An alien ordinarily either must first obtain a
sponsorship from a prospective employer or from a family member who is a
United States citizen or lawful permanent resident or must qualify for a diversity-
based visa.
See id.
§§ 1151, 1153. For family-based and employment-based visas,
the alien’s sponsor typically must submit , on the alien’s behalf, a petition to U.S.
*3
Citizenship and Immigration Services establishing the sponsor-applicant
relationship.
Id
. § 1154(a)(1)(A) – (B), (F); 8 C.F.R. §§ 204.1(a)(1), 204.5(a). If
that petition is approved, the alien then m ay “apply for a visa by submitting the
required documents and appearing at a United States Embassy or consulate for an
interview with a consular officer.”
Kerry v. Din
,
Before the consular officer may issue a visa, he or she must first “ensure the
alien is not inadmissible under any provision of the INA.”
Din
,
In addition, under § 212(f) of the INA, the President may, by proclamation, and “for such period as he shall deem necessary, suspend the e ntry of all aliens or any class of aliens” or “impose on the entry of aliens any restrictions he may deem to be appropriate” whenever he “finds that the entry of [such] aliens or . . . class of aliens . . . would be detrimental to the interests of the Unit ed States.” Id . § 1182(f); *4 see also INA § 215(a)(1), 8 U.S.C. § 1185(a)(1) (“Unless otherwise ordered by the President, it shall be unlawful . . . 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. ”).
Invoking his authority under “the Constitution and . . . sections 212(f) and
215(a)” of the INA, the President issued Proclamation No. 9945 on October 4,
2019.
See
First, the Proclamation states that uninsured persons (including both citizens and aliens) impose “substantial costs” on U.S. healthcare providers and taxpayers. Id . Specifically, “[h]ospitals and other providers often administer care to the uninsured without any hope of receiving reimbursement from them,” and “uncompensated care costs . . . have exceeded $35 billion in each of the last 10 *5 years” or about $7 million annually per U.S. hospital. Id . These costs, the P roclamation states, “are passed on to the American people in the form of higher taxes, higher premiums, and higher fees for medical services.” Id . Moreover, “[b]eyond uncompensated care costs, the uninsured strain Federal and State government budgets through their reliance on publicly funded programs, which ultimately are financed by taxpayers.” Id .
Second, the Proclamation also states that “uninsured individuals often use emergency rooms to seek remedies for a variety of non-emergency conditions, causing overcrowding and delays for those who truly need emergency services.” Id . This “non -emergency usag e” of emergency rooms further “places a large burden on taxpayers, who reimburse hospitals for a portion of their uncompensated emergency care costs.” Id .
The Proclamation further finds that the U.S. Government is making these problems worse “by admitt ing thousands of aliens who have not demonstrated any ability to pay for their healthcare costs. ” Id . In reaching this conclusion, the Proclamation references data showing that “lawful immigrants are about three times more likely than United States citiz ens to lack health insurance.” Id .
Accordingly, the President determined in the Proclamation that “[c]ontinuing to allow entry into the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental” to the *6 national interest. Id .
Based on this finding, the Proclamation generally restricts the entry of
immigrant visa applicants who cannot demonstrate, “to the satisfaction of a
consular officer,” that they either (1) “ will be covered by approved health
insurance” within thirty days of entry, or (2) “possess[] the financial resources to
pay for reasonably foreseeable medical costs.”
The Proclamation lists numerous healthcare plans that would qualify as
“approved health insurance,” including “ an employer-sponsored plan ”; “ an
unsubsidized health plan offered in the individual market within a S tate” ; “a
catastrophic plan”; “a family member’s plan”; “ a medical plan under the Medicare
program”; or “any other health plan that provides adequate coverage for medical
care as determined by the Secretary of Health and Human Services or his
designee.”
[1]
The Proclamation specifically exempts certain aliens from its scope. It does
not apply, for example, to “any alien holding a valid immigrant visa issued before
the effective date” of the Proclama tion or those “entering the United States through
means other than immigrant visas.”
not “affect any individual’s eligibility for asylum , refugee status, withholding of removal, or protection under the Convention Against Torture.” Id .
The Proclamation also establishes certain periodic review procedures. It inst ructs the Secretary of State to submit to the President, “in consultation with” certain agency heads, a report addressing “the continued necessity of and any adjustments that may be warranted to the [Proclamation’s] suspension and limitation on entry.” 84 Fed. Reg. at 53993. This must be done “within 180 days” of the Proclamatio n’s effective date, and again annually thereafter. Id . The Proclamation states that “[i]f the Secretary of State, in consultation with the heads of other appropriate executive departments and agencies, determines that circumstances no longer warrant the continued effectiveness of the suspension or limitation on entry,” the President is to be “immediately” advised. Id . The Proclamation stated that its provisions would take effect on November 3, 2019. Id . at 53994.
B On October 30, 2019, the Latino Network and seven individuals filed this lawsuit against the United States and various federal officials and departments challenging the validity of the Proclamation. [2] The Latino Network — which *9 sometimes refers to itself as “LatNet”— is an organization in Portland, Oregon, whose asserted “mission is to educate and empower Multnomah County Latinos to achieve physical and mental health, safe housing, sustainable financial stability, and social support.” LatNet alleges that the Proclamation has forced it “to divert resources from its core activities to address the Proclamation’s fallout within the community the organization serves.” The seven individual Plaintiffs are all U.S.
citizens who are sponsoring either their spouses (in five cases) or their parents (in the remaining two) for immigrant visas. The seven individual Plaintiffs allege that their respective sponsored relatives will be unable to obtain “approved” health care plans in accordance with the Proclamation and will therefore be inadmissible under its terms. The individual Plaintiffs (but not LatNet) seek to represent two proposed subclasses of persons: (1) a “U.S. Petitioner Subclass” consisting of certain U.S.
persons who are sponsoring alien relatives who are unable to satisfy the Proclamation’s requirements; and (2) a “Visa Applicant Subclass” that generally consists of aliens applying for immigrant visas who cannot meet the Proclamation’s requirements. Because all seven individual Plaintiffs are U.S.
citizens, none is a member of the proposed Visa Applicant Subclass.
the Secretaries who head those Departments. The day after the preliminary injunction was granted, Plaintiffs filed a First Amended Complaint that added an eighth plaintiff. Nothing about our disposition of this appeal turns on any difference between the two complaints, and we therefore focus on the original complaint that was before the district court at the time that it ruled.
The complaint alleges four causes of action. First, the individual Plaintiffs (on behalf of themselves and the subclasses) and LatNet contend that Defendants’ actions violated the Administrative Procedure Act (“APA”) , 5 U.S.C. § 706(2), on a variety of grounds, including that the Proclamation exceeded the President’s authority under INA § 212(f) and conflicted with a variety of other federal statutes. Second, the individual Plaintiffs, on behalf of the U.S. Petitioner Subclass, contended that the Proclamation was motivated by discriminatory animus in violation of the equal protection component of the Fifth Amendment’s Due Process Clause. Third, all Plaintiffs and classes asserted that the Proclamation was ultra vires because it exceeded the scope of the power Congress delegated to the President, conflicted with congressional judgments as reflected in the INA, and violated the separation of powers by contravening Congress’s extension of certain “health care -related benefits to legal immigrants. ” Fourth, the individual Plaintiffs, on behalf of the U.S. Petitioner Subclass, alleged that the Proclamation ’s delegation of decisionmaking authority about health insurance matters to “consular officer [s] with no medical training” violated their procedural due process rights.
On November 1, 2019, Plaintiffs requested a temporary restraining order halting the Proclamation’s implementation, which was granted the next day. On November 8, 2019, Plaintiffs filed two motions: one for class certification and one for a preliminary injunction. Plaintiffs’ request for a preliminary injunction rested *11 on its ultra vires, APA, and due process claims and did not rely on the equal protection claim. Without resolving the class certification motion or certifying a class, the district court on November 26, 2019 issued a worldwide preliminary injunction that enjoined “any action to implement or enforce” the Proclamation.
See Doe #1
,
In finding that Plaintiffs were likely to succeed on the merits, the district
court relied solely on Plaintiffs’ ultra vires claim.
See id
. at 598 (declining to
address the due process and APA claims). Even though Plaintiffs’ motion did not
squarely raise the issue, the district court held that, at least in the context of the
“
domestic
policymaking” the court thought was reflected in the Proclamation,
Congress’s delegation of power to promulgate additional classes of inadmissible
aliens under INA § 212(f) was too standardless and “thus fails under the
nondelegation doctrine.”
[3]
Id
. at 592 (emphasis in original). The court further held
that the Proclamation violated separation-of-powers principles by effectively
overriding and contravening the carefully crafted limitations that Congress had
*12
placed, in INA § 212(a)(4),
see
8 U.S.C. § 1182(a)(4), on the admission of aliens
who are likely to be come a “public charge . ”
[4]
Having found a likelihood of success on the merits, the district court further held that all Plaintiffs were likely to suffer irreparable harm in the absence of preliminary relief. Id . at 598 – 99. In addition to the irreparable harm that the court posited from delays in the visa process, the court stated that the individual Plaintiffs “cannot afford the plans that are available to them.” Id . at 598. The court further specifically held that two of the individual Plaintiffs “ are not likely to meet the requirements of the Proclamation, and there is no indication that they will otherwise fail any of the requirements” of § 212(a) for obtaining visas. Id . The court also concluded that LatNet would suffer irreparable harm from “hav[ing] to continue to divert resources and abandon a significant portion of its core mission if the Proclamation were allowed to go into effect.” Id . at 599. Weighing the equities and the public interest, the district court concluded that they “tip[ped] *13 sharply in favor of Plai ntiffs.” Id . at 602. Finally, the court held that a worldwide injunction was “necessary to provide Plaintiffs and putative class members with relief at this stage of the litigation and to preserve the status quo .” Id . at 604 – 05.
On December 4, 2019, the Government timely appealed the preliminary injunction and sought an immediate administrative stay from this court.
Concluding that there was no “sufficient exigency to justify changing the status
quo,” a motions panel of this court, by a 2 -1 vote, denied the requested
administrative stay.
See Doe #1 v. Trump
,
On April 7, 2020, more than four months after issuing the preliminary injunction, the district court granted , “with a modest modification of the requested de finition” of the U.S. Petitioner Subclass, Plaintiffs’ motion for certification of two classes under Federal Rule of Civil Procedure 23(b)(2). Doe #1 v. Trump , 335 F.R.D. 416, 421 (D. Or. 2020).
On May 4, 2020, the motions panel, again by a 2-1 vote, denied the
G overnment’s motion for a stay of the preliminary injunction pending appeal.
Doe
#1 v. Trump
,
We have jurisdiction over the Government’s appeal of the preliminary injunction under 28 U.S.C. § 1292(a)(1).
II The Government has not challenged Plaintiffs’ Article III standing, either in its opposition to the preliminary injunction motion below or in its briefs in this court. Nonetheless, we have “an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties, ” Summers v.
Earth Island Inst.,
Organizations can assert Article III standing in their own right,
Havens
Realty Corp. v. Coleman
,
LatNet submitted unchallenged evidence in the district court stating that, even before the Proclamation was promulgated, LatNet had been providing information about immigrant visas to clients and “connect [ing] them to legal service providers to assist family reunification applications through the immigrant *16 visa process.” Because many of LatNet’s clients are concerned that their relatives may be unable to meet the Proclamation’s requirements, LatNet’s ongoing counseling efforts have been increasingly devoted to providing “individual consultations with members of [its] community who are concerned about how the implementation of the Proclamation will affect their ability . . . to sponsor family members in the process of applying for an immigrant visa.” LatNet des cribed how these counseling efforts, as well as other “community education efforts” to address community members’ concerns about the Proclamation , caused it to divert personnel and resources from other tasks to assisting in Proclamation-related activities. LatNet’s evidence showed that, all told, “up to 15% of paid staff members’ weekly time during business hours” was devoted to “responding to client concerns and inquiries” about the Proclamation. Because the Proclamation led to a significant increase in the demand and need for LatNet’s pre-existing counseling programs, and caused LatNet to shift resources from other activities in order to address those efforts to counteract the Proclamation, “there can be no question that the organization has suffered inj ury in fact” under Havens Realty .
LatNet therefore has Article III standing. Id .
And because LatNet has standing, we need not address whether the
individual Plaintiffs also have standing.
See Secretary of the Interior v. California
,
1993) (“The general rule applicable to federal court suits with multiple plaintiffs is that once the court determines that one of the plaintiffs has standing, it need not decide the standing of the others.”) . [5] We therefore proceed to the merits of Plaintiffs’ request for a preliminary injunct ion.
III
“We review the district court’s decision to grant or deny a preliminary
injunction for abuse of discretion.”
Southwest Voter Registration Educ. Project v.
Shelley
,
“A plaintiff seeking a preliminary injunction must establish that he is likely
*18
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.”
Winter v. Natural Res. Def. Council, Inc.
, 555
U.S. 7, 20 (2008). “Likelihood of success on the merits is the most important
Winter
factor.”
Disney Enters., Inc. v. VidAngel, Inc.
,
We turn first to whether the district court correctly held that Plaintiffs were likely to succeed on the merits of their ultra vires cause of action, which alleges that the P roclamation exceeds the President’s delegated authority, conflicts with congressional judgments embodied in the INA, and violates the separation of powers. We conclude that Plaintiffs have not demonstrated a likelihood of success as to any of their challenges to the Proclamation.
A
We note, preliminarily, that the Government has not raised any contention in
this court that Plaintiffs lack an ultra vires cause of action, nor has it argued that
Plaintiffs do not fall within any relevant zone of interests that might be applicable
to such a claim.
Cf
.
Sierra Club v. Trump
,
The Government has, however, raised one threshold issue concerning the
asserted justiciability of the merits. Specifically, the Government contends that all
of Plaintiff’s claims are ultimately statutory in nature, and the Government asserts
that, under the consular nonreviewability doctrine, the courts cannot review such
non-constitutional
challenges to the political branches’ decisions to exclude aliens. We need not decide whether the Government is correct in arguing that all of
Plaintiffs’ claims are s tatutory claims rather than constitutional claims.
[6]
Even
*20
assuming that they are, we conclude that there is no obstacle to our disposition on
the merits here. As it likewise told the Supreme Court in
Trump v. Hawaii
, 138
S. Ct. 2392, 2407 (2018), the Government expressly reaffirmed at oral argument
that the consular nonreviewability doctrine is
not
a jurisdictional limit. It follows
that there is no bar to our rejecting Plaintiffs’ claims on the merits without
addressing this threshold issue.
See id
.;
cf
.
Steel Co.
,
Because, as explained below, we conclude that Plaintiffs’ claims are likely to fail on the merits, we have no obligation to reach the consular nonreviewability issue, and like the Supreme Court in Trump v. Hawaii , we decline to do so. [7]
B Plaintiffs’ primary contention on appeal is that the Proclamation is not a lawful exercise of the President’s delegated authority under INA § 212(f). That section provides, in relevant part:
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.
8 U.S.C. § 1182(f). The Supreme Court recently analyzed the scope of the
*21
President’s delegated authority under § 212(f) when it reversed the grant of a
preliminary injunction blocking the enforcement of a different presidential
proclamation in
Trump v. Hawaii
,
In
Trump v. Hawaii
, the Supreme Court addressed a presidential
proclamation that “placed entry restrictions on the nationals of eight foreign states
whose systems for managing and sharing information about their nationals the
President deemed inadequate.” 138 S. Ct. at 2404. A panel of this court upheld a
preliminary injunction against the proclamation, concluding that it “‘conflicts with
the INA’s finely reticulated regulatory scheme’ by addressing ‘matters of
immigration already passed upon by Congress.’”
Id
. at 2406 – 07 (quoting
Hawaii
v. Trump
,
1
In addressing the scope of t he President’s delegated authority under § 212(f),
the
Trump v. Hawaii
Court observed that the statutory text “ exudes deference to
the President in every clause” and “grants the President sweeping authority to
decide whether to suspend entry, whose entry t o suspend, and for how long.” 138
S. Ct. at 2408, 2413;
see also id
. at 2408 (stating that § 212(f) “vests the President
with ‘ample power’ to impose entry restrictions in addition to those elsewhere
enumerated in the INA” (quoting
Sale v. Haitian Ctrs. Council, Inc.,
First, the Court stated that the “ sole
prerequisite
set forth ” in § 212(f) for
imposing additional restrictions is that “the President ‘find[ ]’ that the entry of the
covered aliens ‘would be detrimental to the interests of the United States.’” 138
S. Ct. at 2408 (quoting § 212(f)) (emphasis added). As in
Trump v. Hawaii
, the
“President has undoubtedly fulfilled that requirement here.”
Id
. The President
*23
expressly made such a finding in the Proclamation, concluding that unrestricted
entry of immigrants who could not demonstrate approved insurance coverage or
ability to pay for foreseeable healthcare costs would be “detrimental to the interests
of the United States.” Proclamation No. 9945,
Plaintiffs nonetheless contend that the finding required by § 212(f) has
not
been made because, in their view, the President’s supporting explanation for that
finding in the Proclamation is inadequate. The Supreme Court rejected a similar
argument in
Trump v. Hawaii
,
There, the Court held that the “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications” for the proclamation at issue was “inconsistent with the broad statutory text and the deference traditionally accorded the President in this sphere.” Id . Indeed, the Court found it “questionable” that § 21 2(f)’s requirement to make a finding is accompanied by any sort of requirement to explain those findings in detail. Id . Even so, the Trump v. Hawaii Court noted that the proclamation at issue in that case was more detailed than any proclamation previously issued under § 212(f), some of which contained merely barebones explanations as short as one or five sentences long. Id . (citing Proclamation No. 6958, 61 Fed. Reg. 60007 (Nov. 26, 1996) (President Clinton), Proclamation No. 4865, 46 Fed. Reg. 48107 (Oct. 1, 1981) (President Reagan)).
Here, the Proclamation concisely explains the adverse impact that *24 uncompensated healthcare costs have on the American people, federal and state government budgets, private and public hospitals, and other stakeholders.
Proclamation No. 9945,
(simplified).
Second, the Supreme Court noted that § 212(f)’s reference to “suspend[ing]”
the entry of particular classes of aliens indicates that the limitations imposed under
that section must be temporally limited.
Third, the Court held that § 212(f) requires the President to properly identify a “class of aliens” who are subject to the additional restrictions. Id . Plaintiffs do not contest that the Proclamation adequately defines the specific class of persons who are subject to its restrictions, and so this condition is met as well.
We therefore hold that the Proclamation comports with the textual limitations of § 212(f) as set forth in Trump v. Hawaii .
2
Plaintiffs contend that the Proclamation nevertheless exceeds the President’s
authority under § 212(f) because, in their estimation, the Proclamation conflicts
with
other
provisions of law. In addressing similar arguments in
Trump v. Hawaii
,
the Supreme Court rejected this court’s view that an entry restriction promulgated
under § 212(f) is invalid if it “address[es] ‘matters of immigra tion already passed
upon by Congress’” and thereby “‘conflicts with the INA’s finely reticulated
regulatory scheme.’” 138 S. Ct. at 2406 – 07 (quoting
a
Noting that the Proclamation’s definition of “[a]pproved health insurance”
includes a “health plan offered in the individual market within a State” only if the
plan is “
unsubsidized
,”
see
Proclamation No. 9945,
The ACA “s eeks to make insurance more affordable by giving refundable
tax credits to individuals with household incomes between 100 percent and 400
percent of the federal poverty line .”
King v. Burwell
,
26 U.S.C. § 36B(c)(1)(B). Plaintiffs contend that the Proclamation “overrides” the ACA sc heme by “den[ying] entry to immigrants who would use the assistance Congress provided for comprehensive coverage” and by “requir[ing] new immigrants to reject benefits Congress expressly intended for them to have.” We disagree.
The Proclamation does not “expressly override” this feature of the ACA,
Trump v. Hawaii
,
For similar reasons, we also conclude that the Proclamation does not expressly override the provisions of the Children’s Health Insurance Program Reauthorization Act (“CHIP R A”) that authorize States to extend Medicaid coverage to certain specified lawful aliens. See , e.g. , 42 U.S.C. § 1396b(v)(4).
*31
Because the Proclamation applies “ only to aliens seeking to enter the United States
pursuant to an immigrant visa,” Proclamation No. 9945,
b Plaintiffs also contend, and the district court held, that they are likely to succeed on their argument that the Proclamation conflicts with the so-called “ public charge ” provision of the INA. We again disagree.
Section 212(a)(4)(A) of the INA renders inadmissible any ali en who “is
likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). In
deciding whether an alien is likely to become a public charge, a consular officer
must consider, “at a minimum,” an alien’s age, health, family status, assets,
resources, financial status, education, and skills.
Id.
§ 1182(a)(4)(B)(i). No single
factor is dispositive; rather, the statute requires a holistic approach.
See City &
Cnty. of San Francisco v. USCIS
,
At the broadest level, there is undoubtedly some overlap between the INA’s exclusion of those “likely . . . to become a public charge,” 8 U.S.C.
§ 1182(a)(4)(A), and the Proclamation’s exclusion of those who “ will financially burden the United States healthcare system,” see Proclamation No. 9945, 84 Fed.
Reg. at 53992. As a result, Plaintiffs’ argument might h ave had substantial force
under the opinion of this court that was reversed in
Trump v. Hawaii
, where we
had held that the President could not impose additional restrictions under § 212(f)
that “address[ed] ‘matters of immigration already passed upon by Co ngress.’” 138
S. Ct. at 2407 (quoting
The same is true here. The Proclamation does not override the public charge
provision or its multi-factor inquiry; rather, the Proclamation merely creates an
additional, separate ground for inadmissibility, which is within the President’s
authority under § 212(f).
See id
. at 2408 (stating that § 212(f) “ vests the President
with ‘ample power’ to impose entry restrictions in addition t o those elsewhere
enumerated in the INA” (citation omitted)). The public charge provision is
concerned only with
public
costs broadly conceived, while the Proclamation is
concerned with a specific type of costs — those involving healthcare — and with the
fact that a significant portion of such unreimbursed costs is absorbed by
private
entities in the form of higher insurance premiums and hospital losses.
See
Proclamation No. 9945,
Because an alien seeking an immigrant visa must not be inadmissible under *34 any of the numerous inadmissibility grounds in § 212, an immigrant visa applicant would need to satisfy the requirements of both the public charge provision and the Proclamation. See Proclamation No. 9945, 84 Fed. Reg at 53993 (specifying that the Proclamation’s review process “is separate and independent” from that of “other statutes, regulations, or proclamations”); see generally 8 U.S.C. § 1182. In short, the suspension of entry created by the Proclamation is an additional inadmissibility ground distinct from the public charge provision. Thus, the Proclamation does not conflict with the public charge provision and is not an unlawful exercise of the President’s authority on that basis.
c Plaintiffs’ arguments based on the Violence Against Women Act (“VAWA”) fail for the same reason. VAWA’s amendments to the INA expressly exempt from the INA’s public charge provision certain qualifying alien survivors of specified violent crimes. See , e.g. , 8 U.S.C. § 1182(a)(4)(E); see also id.
§ 1101(a)(51) . Plaintiffs contend that the Proclamation conflicts with the INA’s VAWA amendments because it does not similarly exempt crime victims from its mandate. This assertion that the Proclamation does not mirror the various details of the public charge provision is simply a variant of the same arguments that we rejected earlier. The Proclamation does nothing to override the VAWA amendments, because a n alien who satisfies VAWA’s eligibility requirements is *35 still exempt from the INA’s public charge provision. But VAWA did not exempt those crime victims who satisfy its requirements from all grounds of inadmissibility in the INA, and the President was not required to duplicate that exception merely because the Proclamation overlaps in certain respects with the public charge provision.
* * * Accordingly, we conclude that the Proclamation’s restrictions rest on a valid exercise of the authority delegated in § 212(f) and that those restrictions do not violate any of the other congressional enactments on which Plaintiffs rely. [12]
C
Finally, we reject the district court’s contention that, to the extent that
§ 212(f) allows the President to impose additional entry restrictions based on
“
domestic
policymaking” concerns, § 212(f)
itself
violates the nondelegation
doctrine.
See
As noted earlier, Plaintiffs pointedly avoid defending this holding in their
appellate briefing, instead making the more limited argument that the statute would
violate the nondelegation doctrine only to the extent that it were construed as
“plac[ing] no constraints on the President’s power to exclude prospective
*36
immigrants.” But that is not how the Supreme Court in
Trump v. Hawaii
, or we in
this case, have construed § 212(f). On the contrary, the Supreme Court articulated
several statutory requirements that must be satisfied in connection with an
invocation of § 212(f), and it further assumed that the specific requirements of the
INA could not be overridden through such an invocation.
We have applied the same limitations and the same assumptions here. See supra at 20 – 35. Even if these various limitations collectively provide only a modest constraint on the “comprehensive delegation” contained in § 212(f), see id . at 2408, we have little difficulty concluding that they sufficiently provide “an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.” Gundy v. United States , 139 S. Ct.
2116, 2123 (2019) (plurality) (simplified). That is enough to defeat any nondelegation challenge to § 212(f).
Contrary to what the district court concluded, it makes no difference whether the additional entry restrictions are imposed under § 212(f) based on assertedly domestic policy concerns. The district court’s demand for additional congressional guidance when “domestic” concerns are at issue lacks a principled basis and is unworkable: because all additional restrictions under § 212(f) on who may enter the United States are ultimately based on the “detrimental” impact of those aliens’ presence, see 8 U.S.C. § 1182(f), all such restrictions may be characterized as *37 reflecting “domestic” policy concerns to a greater or lesser degree. Indeed, the many grounds for inadmissibility in § 212(a) of the INA underscore how the decision whether to admit an alien can have adverse domestic consequences. See , e.g. , 8 U.S.C. § 1182(a)(1)(A)(i) (aliens with “ communicable disease[s] of public health significance ” ); id. § 1182(a)(1)(A)(ii) (aliens who have not been vaccinated “ against vaccine-preventable diseases ” ); id. § 1182(a)(2)(A) (aliens convicted of certain crimes); id. § 1182(a)(4) (aliens who are likely to become public charges); id. § 1182(a)(5) (aliens seeking entry for employment purposes whose employment would “adversely affect the wages and working conditions of workers in the United States similarly employed” ). The district court identified no coherent basis for insisting that, in delegating authority to impose additional restrictions on who may immigrate into this country from another nation, Congress must provide greater guidance when the asserted detrimental impact of such aliens is based on “ domestic ” policy concerns.
IV
This court has held that a likelihood of success on the merits is the “‘ most
important ’ factor” in the preliminary injunction analysis, such that “if a movant
fails to meet this ‘threshold inquiry,’ we need not consider the other factors.”
California v. Azar
,
V For the foregoing reasons, the district court abused its discretion in granting the preliminary in junction enjoining the Proclamation’s implementation. Because the preliminary injunction should not have been issued in the first instance, we need not address whether the injunction’s universal scope was overbroad. The order of the district court is reversed, and the preliminary injunction is vacated.
REVERSED.
FILED Doe #1 v. Trump , No. 19-36020
DEC 31 2020 TASHIMA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
I agree with the district court,
Doe #1 v. Trump
,
The Proclamation overrides both the Affordable Care Act (“ACA”), which makes recently arrived lawful immigrants eligible for subsidized health insurance plans, 26 U.S.C. § 36B(c)(1)(B), and the public charge rule of the Immigration and Nationality Act (“INA”), which comprehensively addresses the circumstances under which individuals may be excluded from this country due to their limited financial means or the financial burdens they will place on others, 8 U.S.C.
§ 1182(a)(4). Although § 212(f) of the INA, 8 U.S.C. § 1182(f) (“§ 212(f)”),
“grants the President broad discretion to suspend the entry of aliens into the United
States,”
Trump v. Hawaii
,
Even if that were not the case, I would have grave doubts for other reasons about whether the Proclamation falls within the authority delegated to the President *40 under § 212(f). In contrast to the order upheld by the Supreme Court in Trump v.
Hawaii , Proclamation 9945 has no nexus to national security, addresses a purely domestic concern (uncompensated health care costs), lacks any conceivable temporal limit, and works a major overhaul of this nation’s immigration laws without the input of Congress—a sweeping and unprecedented exercise of unilateral Executive power.
As the district court observed, “[t]he Proclamation is anticipated to affect approximately 60 percent of all immigrant visa applicants,” Doe #1 , 418 F. Supp.
3d at 597—about 375,000 prospective immigrants a year,
Doe #1
,
2 *41 uncompensated care,” worsening the very problem the Proclamation purports to address. Id.
Because I agree with the district court and the motions panel as to the strength of Plaintiffs’ claims, I would hold that the district court properly granted preliminary injunctive relief. I therefore respectfully dissent. [1]
I A Section 212(f) “grants the President broad discretion to suspend the entry of aliens into the United States,” vesting “the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere enumerated in the INA.” Trump v.
Hawaii
,
155, 187 (1993)). “We may assume,” however, that § 212(f) “does not allow the President to expressly override particular provisions of the INA.” Id. at 2411.
Under this limitation, the President may not impose entry restrictions under § 212(f) where Congress has “implicitly foreclose[d] the Executive” from doing so, i.e ., where there is a “conflict between [a] statute and the Proclamation,” or “Congress has stepped into the space and solved the exact problem.” Id. at *42 2411–12. As Plaintiffs argued in Trump v. Hawaii , the President “may supplement the INA, but he cannot supplant it” by “countermand[ing] Congress’s considered policy judgments.” Id. at 2410.
In Trump v. Hawaii , the comparatively narrow additional restrictions on entry imposed by the proclamation satisfied these requirements because they “support[ed]” and “promote[d] the effectiveness” of Congress’s own policy judgments. Id. at 2411. The Court therefore had no occasion to address a presidential invocation of § 212(f) like the one before us now—a Proclamation that undermines, rather than complements, Congress’s policy judgments.
The majority opinion and the government’s briefing conclude that the
“expressly override” standard articulated by the Court in
Trump v. Hawaii
is akin
to the “irreconcilable conflict” standard governing the repeal by implication
doctrine.
See, e.g.
,
Posadas v. Nat’l City Bank of N.Y.
,
4 *43 each as effective’—unless . . . the two laws are ‘irreconcilable.’” Maine Cmty.
Health Options v. United States
,
Mancari
,
NextWave Pers. Commc’ns Inc.
,
The question here, however, is not repeal by implication but rather determining, as a matter of statutory interpretation, the scope of authority Congress intended, in the first instance, to delegate to the President under § 212(f). We certainly do not begin with a presumption that Congress intended to give effect to the Proclamation, and an interpretation that places limits on the authority delegated by § 212(f) is not disfavored. The extraordinarily demanding irreconcilable conflict standard therefore has no place here.
I do not read
Trump v. Hawaii
as suggesting otherwise. The Court there
chose the term “conflict,” not “irreconcilable conflict,” to describe the assumed
limits of § 212(f).
Trump v. Hawaii
,
5 *44 Webster’s Online Dictionary,
https://www.merriam-webster.com/dictionary/override?src=search-dict-hed (last visited Dec. 10, 2020); see also Override , Webster’s Third New International Dictionary 1609 (2002); Override , American Heritage Dictionary of the English Language 1255 (4th ed. 2000). This suggests that, in enacting § 212(f), Congress did not intend to authorize the President to adopt restrictions on entry that are inconsistent with, and antagonistic to, its own immigration laws. It strains credulity to suggest that Congress intended to authorize the President to undermine its own policy judgments.
Thus, the issue before us is simply whether the Proclamation “overrides” immigration laws in the common understanding of that word. Plaintiffs need not show that the Proclamation and congressionally adopted immigration laws are in irreconcilable conflict—that it is impossible to give effect to both. They need show only that the Proclamation seriously undermines these laws, or, alternatively, that “Congress has stepped into the space and solved the exact problem.” Trump v.
Hawaii
,
B I would further hold that Plaintiffs have made the required showing here. 6
1
First, Plaintiffs are likely to succeed on their claim that the Proclamation
overrides the ACA, which makes lawful immigrants eligible for subsidized health
insurance plans.
See
26 U.S.C. § 36B(c)(1)(B); 42 U.S.C. § 18032(f)(3). Under
the Proclamation, however, a visa applicant cannot rely on a subsidized insurance
plan to gain admission to the country.
Despite Congress’s clear intent to extend these tax credits to legal immigrants, the Proclamation explicitly excludes such “subsidized plans” from the list of approved health insurance plans. As a result, an immigrant attempting to legally enter the United States will not have access to ACA tax credits as Congress intended.
Doe #1
,
The majority concludes that there is no conflict between the Proclamation and the ACA scheme because “ after an alien satisfies the requirements of the Proclamation and gains lawful permanent residence, nothing in the Proclamation prevents the alien from then obtaining subsidized insurance plans as provided for under the ACA.” Maj. Op. 30 (footnote omitted). That argument is specious. It is premised on the assumption unsupported by the record that prospective immigrants will be able to satisfy the Proclamation’s health insurance requirement without
7
*46
relying on the ACA. The district court found, based on the record evidence, that
“the approved insurance plans delineated in the Proclamation were ‘legally or
practically unavailable to intending, or prospective, immigrants.’”
Doe #1
, 957
F.3d at 1060 (quoting
Doe #1
,
The government has shown at most that there is no irreconcilable conflict between the Proclamation and the ACA: that however much the Proclamation undermines the ACA, it is at least possible to give effect to both provisions. As discussed, however, I would not require Plaintiffs to demonstrate irreconcilable conflict. I would instead require them to show only that the Proclamation is inconsistent with, and antagonistic to, any reasonable understanding of congressional intent underlying the ACA. Plaintiffs have made that showing here.
As the motions panel concluded, “the Proclamation bars immigrants from accessing subsidized insurance plans despite Congress’s express intent to extend those plans to legal immigrants.” Id. at 1063.
2 Second, Plaintiffs are likely to succeed on their claim that the Proclamation overrides the public charge rule and the Violence Against Women Act (“VAWA”) amendments to that rule. The public charge rule provides that “[a]ny alien who . . .
is likely at any time to become a public charge is inadmissible,” and it states that,
8
*47
“[i]n determining whether an alien is inadmissible under this paragraph, the
consular officer or the Attorney General shall at a minimum consider the alien’s
. . . age; . . . health; . . . family status; . . . assets, resources, and financial status;
and . . . education and skills.” 8 U.S.C. § 1182(a)(4)(A)–(B). Since 1882, public
charge determinations have consistently been made under a “totality-of-the-
circumstances test.”
City & County of San Francisco v. U.S. Citizenship &
Immigr. Servs.
,
Plaintiffs argue that the Proclamation conflicts with this rule because it supplants the totality-of-the-circumstances test with one dispositive factor: whether an alien can obtain health insurance or afford health care. They argue that “the Proclamation’s heathcare insurance test cannot be reconciled with the long- standing congressional judgment about the holistic way to assess admissibility for immigrants who may financially burden the United States.”
The government plausibly contends in response that the Proclamation
supplements rather than conflicts with the public charge rule. As the Court said in
Trump v. Hawaii
, “[f]airly read, [§ 212(f)] vests authority in the President to
impose additional limitations on entry beyond the grounds for exclusion set forth
in the INA.”
9 *48 providers rather than government, it is possible to argue, as the majority concludes, that the Proclamation in this respect complements rather than supplants the public charge rule. Maj. Op. 32.
On balance, however, Plaintiffs likely are correct that Congress never
intended the President to use the authority delegated by § 212(f) in this unusual
manner—to effectively displace Congress’s own judgment about when aliens
should be denied admission for financial reasons. In the public charge rule,
Congress has specifically and comprehensively addressed when, based on financial
status, an alien should be excluded from the United States. The Proclamation
plainly overrides that congressional policy judgment. As the motions panel
concluded, “[t]he Proclamation eviscerates the statutory scheme by making the
acquisition of designated forms of health insurance the sole consideration of
whether an applicant should be excluded from consideration for a family visa [for
financial reasons]. Any argument contending that the Proclamation complements
the public charge statutory scheme is therefore incorrect.”
Doe #1
,
The conflict between the Proclamation and the public charge rule is even clearer when the VAWA amendments to the rule are considered. As the motions panel explained, “[t]he VAWA amendments exempted from the public charge
10
*49
exclusion certain immigrant relatives of victims of violent crimes, such as felony
assault, sexual assault, incest, kidnapping, or human trafficking,” and “victims of
battering and extreme cruelty.”
Doe #1
,
§§ 1101(a)(15)(U)(iii), 1154(a)(1)(A)(iii)–(vi)). “Congress expressly provided that these immigrants—including the spouses, children, and parents of violent crime victims—were categorically exempt from the financial burden or ‘public charge’ provisions of the INA.” Id. The Proclamation, by contrast, “makes no such exemption. Rather, it effectively prohibits family members of violent crime victims from obtaining visas and joining their families in the United States by declaring them to be financial burdens and ineligible, directly contradicting VAWA.” Id.
Once again, the majority concludes that there is no conflict, “because an alien who satisfies VAWA’s eligibility requirements is still exempt from the INA’s public charge provision.” Maj. Op. 35. But again, the majority requires Plaintiffs to demonstrate an irreconcilable conflict rather than a substantial one. It would make no sense for Congress to exempt these individuals from the financial burden requirements of the public charge rule, but to authorize the President to impose a comparable requirement. In purpose and effect, the Proclamation undoes what Congress sought to achieve through the VAWA amendments. The Proclamation,
11 *50 therefore, is incompatible with the VAWA amendments to the public charge rule.
The President has, through § 212(f), imposed a second and far stricter version of the public charge rule’s financial burden test. I am not persuaded that the discretion afforded to the President by § 212(f) includes the power to override congressional immigration policy in this unprecedented manner.
II That the Proclamation impermissibly overrides congressional immigration policy is sufficient to show that Plaintiffs have shown a strong likelihood of success on the merits. Even if that were not the case, however, I would have grave doubts about whether the Proclamation falls within the President’s authority under § 212(f).
These doubts begin with the Proclamation’s sweeping, legislative nature. As
the motions panel noted, “[t]he district court concluded that the Proclamation
likely would negatively affect approximately 60% of all immigrant visa
applicants.”
Doe #1
,
12
*51
entry, whose entry to suspend, and for how long,”
Trump v. Hawaii
,
See Doe #1
,
In addition, in contrast to the proclamation at issue in
Trump v. Hawaii
,
Proclamation 9945 does not address “national security risks.”
Trump v. Hawaii
,
*52
Moreover, the Proclamation does not qualify as a
suspension
, as the statute
requires. Although § 212(f) does not require the President “to prescribe in advance
a fixed end date for the entry restrictions,” the President must “link the duration of
those restrictions, implicitly or explicitly, to the resolution of the” policy concern
that triggers the suspension.
Trump v. Hawaii
,
If the Secretary of State, in consultation with the heads of other appropriate executive departments and agencies, determines that circumstances no longer warrant the continued effectiveness of the suspension or limitation on entry set forth in section 1 of this proclamation or that circumstances warrant additional measures, the Secretary shall immediately so advise the President.
14 *53 of the Proclamation suggests that the President would rescind these entry restrictions. See id. at 1065.
These additional concerns, as Plaintiffs have shown, raise serious questions of their own about the permissibility of the President’s actions.
III Because the restrictions imposed by Proclamation No. 9945 are incompatible with immigration policies adopted by Congress in the ACA, the public charge rule of the INA, and the VAWA’s amendments to the public charge rule, Plaintiffs have demonstrated a likelihood of success on the merits.
Accordingly, I respectfully dissent.
15
Notes
[1] The Proclamation’s definition of “approved health insurance” also specifically includes “ a short-term limited duration health policy effective for a minimum of 364 days — or until the beginning of planned, extended travel outside the United States ” ; “ a medical plan under chapter 55 of title 10, United States Code, including
[2] Specifically, the complaint also named as Defendants the President; the Departments of State, Homeland Security, and Health and Human Services; and
[3] In their motion for a preliminary injunction, Plaintiffs argued that the “broad de legation of discretion” in § 212(f) was not “unlimited,” because it was bounded by the congressional judgments reflected in the other statutory provisions that Plaintiffs claimed that the Proclamation contravened. Plaintiffs argued that a broader reading of the President’s discretion under § 212(f) would not be “consistent with the non - delegation doctrine.” The motion thus argued only that § 212(f) had to be construed consistently with the nondelegation doctrine; it did not argue that the congressional delegation of power actually did violate the nondelegation doctrine.
[4] As noted, t he district court did not reach Plaintiffs’ due process or APA claims. The court also did not separately address whether the Proclamation was a proper
exercise of Executive authority under INA § 215(a)(1), 8 U.S.C. § 1185(a)(1).
See
Doe #1
,
[5] The standing of the other Plaintiffs might have mattered if, upon turning to the
merits, we had concluded that the Proclamation was likely invalid, because the
respective standing of the Plaintiffs could affect the scope of the injunctive relief
that would then be warranted to redress the Plaintiffs’ injuries. But given that we
conclude that Plaintiffs are unlikely to succeed on the merits, we may consequently
deny preliminary injunctive relief to the remaining Plaintiffs without considering
their standing.
See Steel Co. v. Citizens for a Better Env ’ t
,
[6] As noted earlier, Plaintiffs did not assert a straight nondelegation constitutional
challenge to § 212(f) in the district court,
see supra
note 3, and they do not defend
the district court’s reasoning on that score on appeal. Rather, as they did below,
Plaintiffs assert only the more limited argument that,
if
the court were to conclude
that the statutory limitations that Plaintiffs invoke do not constrain the President’s
exercise of the delegated authority under § 212(f),
then
the statute would raise
serious nondelegation concerns. However, Plaintiffs
do
assert in this court (and
asserted below) that the President’s disregard of the congressionally imposed
limitations on his authority violate the constitutional separation of powers, and the
district court agreed.
See supra
at 10 – 12. Citing
Dalton v. Specter
,
[7] Of course, if we had concluded that Plaintiffs were likely to succeed on the merits, we would then have been required to address the Government’s properly asserted arguments concerning the consular nonreviewability doctrine.
[8] Even then, the Court was willing only to “assume” this more limited proposition arguendo; it did not hold that such a limitation applies to § 212(f). See 138 S. Ct. at 2411.
[9] The dissent rests on the strawman argument that we have adopted a sort of reverse repeal-by-implication standard, under which the requisite conflict would not exist unless the statute (had it been enacted later) would be thought to “repeal” by implication the Proclamation’s rules. See Dissent at 4 – 5. Nothing in our opinion adopts any such standard; rather, we have simply followed the applicable standards as they have been articulated by Trump v. Hawaii . The dissent, by contrast, would find the requisite conflict with a statutory provision whenever a restriction adopted by the President under § 212(f) is “inconsistent” with “congressional intent” behind that provision or “displace [s] ” congressional judgments in the same general area. See Dissent at 8, 10. That seems akin to the more amorphous standard that we had adopted, and that the Supreme Court rejected, in Trump v. Hawaii .
[10] In particular, the Proclamation’s prohibition on any “w illful misrepresentation of
a material fact,”
see
Proclamation No. 9945,
[11] Because Plaintiffs’ claim here is based on an asserted conflict between the
“public charge” provision’s totality -of-the-circumstances approach and the
Proclamation’s specific f ocus on the ability to cover healthcare expenses, the issue
before us does not turn on the distinct question concerning the scope of the “public
charge” provision that divided the panel in our recent decision in
City & County of
San Francisco v. USCIS
.
See
[12] As such, Plaintiffs’ arguments that the Proclamation impermissibly overrides congressional judgments in violation of the separation of powers likewise fails.
[1] Specifically, I dissent from Part III-B-2 of the majority opinion. I agree with Part II of the majority opinion, regarding standing, and express no view as to the remaining parts of the majority’s analysis. 3
[2] Because I conclude that Plaintiffs are likely to succeed on their ultra
vires cause of action, I do not address their separation of powers claim. As the
district court pointed out, however, the Supreme Court has repeatedly emphasized
the central role that Congress has to play in making immigration policy.
See, e.g.
,
Fiallo v. Bell
,