No. 16-1436
`In the Supreme Court of the United States
`
`
`DONALD J. TRUMP, ET AL., PETITIONERS
`v.
`INTERNATIONAL REFUGEE ASSISTANCE PROJECT,
`A PROJECT OF THE URBAN JUSTICE CENTER, INC.,
`ON BEHALF OF ITSELF AND ITS CLIENTS, ET AL.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
` JEFFREY B. WALL
`Acting Solicitor General
`Counsel of Record
`CHAD A. READLER
`Acting Assistant Attorney
`General
`EDWIN S. KNEEDLER
`Deputy Solicitor General
`HASHIM M. MOOPPAN
`Deputy Assistant Attorney
`General
`JONATHAN C. BOND
`Assistant to the Solicitor
`General
`AUGUST E. FLENTJE
`Special Counsel
`DOUGLAS N. LETTER
`SHARON SWINGLE
`H. THOMAS BYRON III
`LOWELL V. STURGILL JR.
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`DONALD J. TRUMP, ET AL., PETITIONERS
`v.
`INTERNATIONAL REFUGEE ASSISTANCE PROJECT,
`A PROJECT OF THE URBAN JUSTICE CENTER, INC.,
`ON BEHALF OF ITSELF AND ITS CLIENTS, ET AL.
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
` JEFFREY B. WALL
`Acting Solicitor General
`Counsel of Record
`CHAD A. READLER
`Acting Assistant Attorney
`General
`EDWIN S. KNEEDLER
`Deputy Solicitor General
`HASHIM M. MOOPPAN
`Deputy Assistant Attorney
`General
`JONATHAN C. BOND
`Assistant to the Solicitor
`General
`AUGUST E. FLENTJE
`Special Counsel
`DOUGLAS N. LETTER
`SHARON SWINGLE
`H. THOMAS BYRON III
`LOWELL V. STURGILL JR.
`Attorneys
`Department of Justice
`Washington, D.C. 20530-0001
`SupremeCtBriefs@usdoj.gov
`(202) 514-2217
`
`
`
`
`
`
`
`QUESTIONS PRESENTED
`The Constitution and Acts of Congress confer on the
`President broad authority to prohibit or restrict the entry
`of aliens outside the United States when he deems it in
`the Nation’s interest. Exercising that authority, the
`President issued Executive Order No. 13,780, 82 Fed.
`Reg. 13,209 (Mar. 9, 2017). Section 2(c) of that Order
`suspends for 90 days the entry of foreign nationals from
`six countries that Congress or the Executive previously
`designated as presenting heightened terrorism-related
`risks, subject to case-by-case waivers. The district court
`issued, and the court of appeals upheld, a preliminary
`injunction barring enforcement of Section 2(c) against
`any person worldwide, because both courts concluded
`that the suspension violates the Establishment Clause.
`The questions presented are:
`1. Whether respondents’ challenge to the temporary
`suspension of entry of aliens abroad is justiciable.
`2. Whether Section 2(c)’s temporary suspension of
`entry violates the Establishment Clause.
`3. Whether the global injunction, which rests on
`alleged injury to a single individual plaintiff, is imper-
`missibly overbroad.
`
`
`(I)
`
`
`
`PARTIES TO THE PROCEEDING
`Petitioners (defendants-appellants below) are Donald
`J. Trump, in his official capacity as President of the
`United States; the United States Department of Home-
`land Security; the Department of State; the Office of the
`Director of National Intelligence; John F. Kelly, in his
`official capacity as Secretary of Homeland Security;
`Rex W. Tillerson, in his official capacity as Secretary of
`State; and Daniel R. Coats, in his official capacity as
`Director of National Intelligence.
`Respondents (plaintiffs-appellees below) are the
`International Refugee Assistance Project, a project of
`the Urban Justice Center, Inc., on behalf of itself and its
`clients; HIAS, Inc., on behalf of itself and its clients; the
`Middle East Studies Association of North America,
`Inc., on behalf of itself and its members; Muhammed
`Meteab; Paul Harrison; Ibrahim Ahmed Mohomed;
`John Doe #1; John Doe #3; and Jane Doe #2.
`
`(II)
`
`
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`Opinions below ................................................................................ 1
`Jurisdiction ...................................................................................... 2
`Constitutional, statutory, and regulatory
`provisions involved .................................................................... 2
`Statement:
`A. Legal framework ............................................................... 2
`B. The Executive Orders ....................................................... 5
`C. Procedural history ............................................................. 8
`D. Related litigation ............................................................. 12
`Reasons for granting the petition:
`I. The decision below is wrong .......................................... 13
`A. Doe #1’s challenge to Section 2(c) is not
`justiciable .................................................................. 14
`B. Section 2(c) does not violate the Establishment
`Clause ........................................................................ 20
`1. Section 2(c) is constitutional under Mandel
`and Din ................................................................ 20
`2. Section 2(c) is constitutional under domestic
`Establishment Clause precedent ...................... 26
`C. The global injunction against Section 2(c) is
`vastly overbroad ...................................................... 31
`II. The decision below is in need of review ........................ 33
`Conclusion ...................................................................................... 35
`Appendix A — Court of Appeals Amended Opinion
`(4th Cir. May 31, 2017) ................................. 1a
`Appendix B — District Court Memorandum Opinion
`(D. Md. Mar. 16, 2017) .............................. 208a
`Appendix C — District Court Order
`(D. Md. Mar. 16, 2017) .............................. 262a
`Appendix D — Constitutional, statutory, and
`regulatory provisions ................................ 265a
`
`(III)
`
`
`
`IV
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Page
`Allen v. Wright, 468 U.S. 737 (1984) .................................. 17
`Arizona v. United States, 132 S. Ct. 2492 (2012) .............. 33
`Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ................ 18
`Board of Educ. of Kiryas Joel Village Sch. Dist.
`v. Grumet, 512 U.S. 687 (1994) ........................................ 28
`Brownell v. Tom We Shung, 352 U.S. 180 (1956) ............. 14
`Catholic League for Religious & Civil Rights v.
`City & County of San Francisco, 624 F.3d 1043
`(9th Cir. 2010), cert. denied, 563 U.S. 974 (2011) ........... 18
`Church of the Lukumi Babalu Aye, Inc. v.
`City of Hialeah, 508 U.S. 520 (1993) ......................... 26, 28
`City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............. 31
`Department of the Navy v. Egan,
`484 U.S. 518 (1988) ............................................................ 33
`Elk Grove Unified Sch. Dist. v. Newdow,
`542 U.S. 1 (2004) ................................................................ 17
`Fiallo v. Bell, 430 U.S. 787 (1977) ................................ 14, 21
`Harisiades v. Shaughnessy, 342 U.S. 580 (1952) ............... 3
`Hawaii v. Trump, No. 17-50:
`2017 WL 1011673 (D. Haw. Mar. 15, 2017) ................. 12
`2017 WL 1167383 (D. Haw. Mar. 29, 2017) ................. 12
`INS v. Chadha, 462 U.S. 919 (1983) ................................... 22
`Kerry v. Din, 135 S. Ct. 2128 (2015)....................... 15, 23, 24
`Kleindienst v. Mandel, 408 U.S. 753 (1972) ............. passim
`Lemon v. Kurtzman, 403 U.S. 602 (1971) ........................... 9
`Lewis v. Casey, 518 U.S. 343 (1996) ................................... 31
`Madsen v. Women’s Health Ctr., Inc.,
`512 U.S. 753 (1994) ............................................................ 31
`
`
`
`
`
`
`
`V
`
`Page
`
`Cases—Continued:
`McCreary County v. ACLU of Ky.,
`545 U.S. 844 (2005) ...................................................... 26, 27
`McGowan v. Maryland, 366 U.S. 420 (1961) .............. 16, 17
`Moss v. Spartanburg Cnty. Sch. Dist. Seven,
`683 F.3d 599 (4th Cir.), cert. denied,
`133 S. Ct. (2012) ................................................................. 18
`Navy Chaplaincy, In re, 534 F.3d 756
`(D.C. Cir. 2008), cert. denied,
`556 U.S. 1167 (2009) .................................................... 19, 20
`Reno v. American-Arab Anti-Discrim. Comm.,
`525 U.S. 471 (1999) ............................................................ 22
`Republican Party of Minn. v. White,
`536 U.S. 765 (2002) ............................................................ 28
`Saavedra Bruno v. Albright, 197 F.3d 1153
`(D.C. Cir. 1999) .................................................................. 14
`Sale v. Haitian Ctrs. Council, Inc.,
`509 U.S. 155 (1993) ............................................................ 33
`Smith v. Jefferson Cnty. Bd. of Sch. Comm’rs,
`641 F.3d 197 (6th Cir.), cert. denied,
`565 U.S. 820 (2011) ............................................................ 17
`Suhre v. Haywood County, 131 F.3d 1083
`(4th Cir. 1997) .................................................................... 18
`Texas v. United States, 523 U.S. 296 (1998) ...................... 16
`United States v. Chemical Found., Inc.,
`272 U.S. 1 (1926) ................................................................ 29
`United States v. Verdugo-Urquidez,
`494 U.S. 259 (1990) ............................................................ 14
`United States ex rel. Knauff v. Shaughnessy,
`338 U.S. 537 (1950) .......................................................... 2, 3
`Valley Forge Christian Coll. v. Americans United
`for Separation of Church & State, Inc.,
`454 U.S. 464 (1982) ............................................................ 18
`
`
`
`
`
`
`
`VI
`
`Page
`
`Cases—Continued:
`Washington v. Trump:
`No. 17-141, 2017 WL 462040
`(W.D. Wash. Feb. 3, 2017) ......................................... 5
`847 F.3d 1151 (9th Cir. 2017) .......................................... 5
`Amended Order, No. 17-35105
`(9th Cir. Mar. 17, 2017) .................... 12, 25, 28, 29, 30
`Winter v. Nat. Res. Def. Council, Inc.,
`555 U.S. 7 (2008) ................................................................ 33
`Zadvydas v. Davis, 533 U.S. 678 (2001) ............................ 22
`Zivotofsky ex rel. Zivotofsky v. Kerry,
`135 S. Ct. 2076 (2015) ........................................................ 22
`Constitution, statutes, and regulations:
`U.S. Const.:
`Art. II, § 1, Cl. 8 ............................................................. 28
`Art. III ...................................................................... 16, 31
`Amend. I (Establishment Clause) ............. passim, 265a
`Immigration and Nationality Act,
`8 U.S.C. 1101 et seq. ............................................................ 3
`8 U.S.C. 1101(a)(42) ......................................................... 5
`8 U.S.C. 1104(a)(1) ......................................................... 14
`8 U.S.C. 1152(a)(1)(A) ............................................ 9, 265a
`8 U.S.C. 1157 .................................................................... 5
`8 U.S.C. 1181 .................................................................... 3
`8 U.S.C. 1182(a)(3)(B) .......................................... 24, 270a
`8 U.S.C. 1182(a)(7)(A)(i) .................................................. 3
`8 U.S.C. 1182(a)(7)(B)(i)(II) ............................................ 3
`8 U.S.C. 1182(a)(7)(B)(iv) ................................................ 3
`8 U.S.C. 1182(f ) ...................................... 1, 4, 22, 24, 276a
`8 U.S.C. 1185(a)(1) ............................................. 2, 4, 277a
`8 U.S.C. 1187 (2012 & Supp. III 2015) ........................... 3
`8 U.S.C. 1187(a)(12)(A)(i) (Supp. III 2015) ................... 3
`
`
`
`
`VII
`
`Page
`Statutes and regulations—Continued:
`8 U.S.C. 1187(a)(12)(A)(ii) (Supp. III 2015) .................. 3
`8 U.S.C. 1187(a)(12)(D)(i) (Supp. III 2015) ................... 4
`8 U.S.C. 1187(a)(12)(D)(ii) (Supp. III 2015) .................. 4
`8 U.S.C. 1201(a)(1) ........................................................... 3
`8 U.S.C. 1201(h) ............................................................... 3
`8 U.S.C. 1201(i) ............................................................... 14
`8 U.S.C. 1202(h) ............................................................... 3
`8 U.S.C. 1203 .................................................................... 3
`8 U.S.C. 1204 .................................................................... 3
`8 U.S.C. 1225(a) ................................................................ 3
`6 U.S.C. 236(b)(1) ................................................................. 14
`6 U.S.C. 236(c)(1) ................................................................. 14
`6 U.S.C. 236(f ) ...................................................................... 14
`Exec. Order No. 13,769, 82 Fed. Reg. 8977
`(Feb. 1, 2017) ............................................................. 5, 277a
`Exec. Order No. 13,780, 82 Fed. Reg. 13,209
`(Mar. 9, 2017) .................................................. passim, 289a
`22 C.F.R. 42.62 ....................................................................... 3
`Miscellaneous:
`Bureau of Consular Affairs, U.S. Dep’t of State,
`Executive Order on Visas (Mar. 22, 2017),
`https://goo.gl/HoNiNz ............................................................ 7
`Dep’t of Homeland Sec.:
`DHS Announces Further Travel Restrictions for
`the Visa Waiver Program (Feb. 18, 2016),
`https://goo.gl/OXTqb5 ................................................ 4
`Q&A: Protecting the Nation from Foreign
`Terrorist Entry to the United States
`(Mar. 6, 2017), https://goo.gl/WtVwTu ..................... 7
`
`
`
`
`
`
`
`VIII
`
`Page
`
`Miscellaneous—Continued:
`Dan Merica, Trump Signs Executive Order to Keep
`Out ‘Radical Islamic Terrorists,’ CNN.com
`(Jan. 30, 2017), https://goo.gl/dMZEvO ............................. 31
`Letter from Jefferson B. Sessions III,
`Att’y Gen., & John Francis Kelly,
`Sec’y of Homeland Sec., to President Donald J.
`Trump (Mar. 6, 2017), https://goo.gl/H69g8I .................... 6
`U.S. Dep’t of State, Country Reports on Terrorism
`2015 (June 2016), https://goo.gl/40GmOS ............................. 3
`
`
`
`
`
`
`
`
`
`
`In the Supreme Court of the United States
`
`
`
` No.
`DONALD J. TRUMP, ET AL., PETITIONERS
`v.
`INTERNATIONAL REFUGEE ASSISTANCE PROJECT,
`A PROJECT OF THE URBAN JUSTICE CENTER, INC.,
`ON BEHALF OF ITSELF AND ITS CLIENTS, ET AL.
`
`
`ON PETITION FOR A WRIT OF CERTIORARI
`TO THE UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`
`PETITION FOR A WRIT OF CERTIORARI
`
`
`The Acting Solicitor General, on behalf of petitioners
`President Donald J. Trump, et al., respectfully petitions
`for a writ of certiorari to review the judgment of the
`United States Court of Appeals for the Fourth Circuit
`in this case.
`
`OPINIONS BELOW
`The amended opinion of the court of appeals (App.,
`infra (App.), 1a-207a) is not yet reported in the Federal
`Reporter, but a prior version of the opinion is available
`at 2017 WL 2273306. The opinion of the district court
`(App. 208a-261a) is not yet reported in the Federal
`Supplement but is available at 2017 WL 1018235. The
`order of the district court entering a preliminary injun-
`ction (App. 262a-264a) is not published.
`
`(1)
`
`
`
`2
`
`JURISDICTION
`The judgment of the court of appeals was entered on
`May 25, 2017. The jurisdiction of this Court is invoked
`under 28 U.S.C. 1254(1).
`CONSTITUTIONAL, STATUTORY, AND
`REGULATORY PROVISIONS INVOLVED
`Pertinent constitutional, statutory, and regulatory
`provisions are reproduced in the appendix to this peti-
`tion. App. 265a-312a.
`STATEMENT
`The Constitution and Acts of Congress confer on the
`President broad authority to suspend or restrict the
`entry of aliens outside the United States when he deems
`it in the Nation’s interest. See United States ex rel.
`Knauff v. Shaughnessy, 338 U.S. 537, 542 (1950);
`8 U.S.C. 1182(f ), 1185(a)(1). Exercising that authority,
`and after consulting with the Secretaries of State and
`Homeland Security and the Attorney General, the Pres-
`ident placed a temporary 90-day pause (subject to indi-
`vidualized waivers) on the entry of certain foreign
`nationals from six countries that are sponsors or shel-
`ters of terrorism, and that Congress or the Executive
`previously had designated as presenting heightened
`terrorism-related risks. The district court entered a
`global injunction barring enforcement of the President’s
`action. App. 262a-264a. The court of appeals affirmed
`on the basis that the President’s “stated national secu-
`rity interest” “was provided in bad faith, as a pretext for
`its religious purpose.” App. 45a; see App. 38a-65a.
`A. Legal Framework
`“The exclusion of aliens is a fundamental act of sov-
`ereignty” that lies in the “legislative power” and also “is
`inherent in the executive power to control the foreign
`
`
`
`
`
`3
`
`affairs of the nation.” Knauff, 338 U.S. at 542; see
`Harisiades v. Shaughnessy, 342 U.S. 580, 588-589
`(1952) (Control of the Nation’s borders is “interwoven”
`with “the conduct of foreign relations” and “the war
`power.”). Congress has addressed admission into the
`United States in the Immigration and Nationality Act
`(INA), 8 U.S.C. 1101 et seq., which accords the Presi-
`dent broad discretion to suspend or restrict the entry of
`aliens abroad.
`1. Under the INA, admission into the United States
`normally requires a valid visa or other valid travel docu-
`ment. See 8 U.S.C. 1181, 1182(a)(7)(A)(i) and (B)(i)(II),
`1203. Applying for a visa typically requires an in-person
`interview and results in a decision by a State Depart-
`ment consular officer. 8 U.S.C. 1201(a)(1), 1202(h),
`1204; 22 C.F.R. 42.62. Although a visa normally is nec-
`essary for admission, it does not guarantee admission;
`the alien still must be found admissible upon arriving at
`a port of entry. 8 U.S.C. 1201(h), 1225(a).
`Congress has enabled nationals of certain countries to
`seek temporary admission without a visa under the Visa
`Waiver Program. 8 U.S.C. 1182(a)(7)(B)(iv); 8 U.S.C. 1187
`(2012 & Supp. III 2015). In 2015, Congress excluded
`from travel under that Program aliens who are dual
`nationals of or recent visitors to Iraq or Syria, where
`“[t]he Islamic State of Iraq and the Levant (ISIL)
`* * * maintain[s] a formidable force”; as well as
`nationals of and recent visitors to countries designated
`by the Secretary of State as state sponsors of terrorism
`(currently Iran, Sudan, and Syria).1
`
`
`1 U.S. Dep’t of State, Country Reports on Terrorism 2015, at 6, 299-
`302 (June 2016), https://goo.gl/40GmOS; see 8 U.S.C. 1187(a)(12)(A)(i)
`and (ii) (Supp. III 2015); App. 7a n.4.
`
`
`
`
`4
`
`Congress also has authorized the Department of
`Homeland Security (DHS) to designate additional coun-
`tries of concern, considering whether a country is a “safe
`haven for terrorists,” “whether a foreign terrorist organ-
`ization has a significant presence” in the country, and
`“whether the presence of an alien in the country * * *
`increases the likelihood that the alien is a credible threat
`to” U.S. national security. 8 U.S.C. 1187(a)(12)(D)(i) and
`(ii) (Supp. III 2015). Applying those criteria, in February
`2016, DHS excluded recent visitors to Libya, Somalia, and
`Yemen from travel under the Visa Waiver Program.2
`2. Beyond the Executive’s authority to remove nation-
`als of particular countries from the Visa Waiver Program,
`Congress has accorded the President broad discretion
`to suspend or restrict the admission of aliens. Section
`1182(f ) of Title 8 of the United States Code 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.
`Section 1185(a)(1) of Title 8 further grants the Presi-
`dent broad authority to adopt “reasonable rules, regu-
`lations, and orders” governing entry or removal of
`aliens, “subject to such limitations and exceptions as
`[he] may prescribe.”
`
`
`2 DHS, DHS Announces Further Travel Restrictions for the Visa
`Waiver Program (Feb. 18, 2016), https://goo.gl/OXTqb5; App. 7a n.4.
`
`
`
`
`5
`
`B. The Executive Orders
`1. On January 27, 2017, the President issued Execu-
`tive Order No. 13,769, 82 Fed. Reg. 8977 (Feb. 1, 2017)
`(January Order) (App. 277a-288a). The January Order
`directed the Secretaries of Homeland Security and
`State to assess current screening procedures to deter-
`mine whether they are sufficient to detect individuals
`seeking to enter this country to do it harm. App. 279a
`(§ 3(a) and (b)). While that review was ongoing, the Jan-
`uary Order suspended for 90 days entry of foreign
`nationals of the seven countries already designated as
`posing heightened terrorism-related concerns in the
`context of the Visa Waiver Program, subject to case-by-
`case exceptions. App. 280a-281a (§ 3(c) and (g)). Other
`provisions addressed the U.S. Refugee Admissions Pro-
`gram (Refugee Program). 8 U.S.C. 1101(a)(42), 1157.
`The January Order was challenged in multiple courts.
`On February 3, 2017, a district court in Washington
`enjoined enforcement nationwide of the 90-day entry
`suspension and various refugee-related provisions.
`Washington v. Trump, No. 17-141, 2017 WL 462040
`(W.D. Wash.). On February 9, 2017, a Ninth Circuit
`panel declined to stay that injunction pending appeal.
`Washington v. Trump, 847 F.3d 1151 (per curiam).
`While acknowledging that the injunction may have been
`“overbroad,” the Ninth Circuit declined to narrow it,
`concluding that “[t]he political branches are far better
`equipped” to do so. Id. at 1166, 1167.
`2. On March 6, 2017, responding to the Ninth Cir-
`cuit’s decision—and in accordance with a formal recom-
`mendation of the Secretary of Homeland Security and
`the Attorney General—the President issued Executive
`Order No. 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017)
`(Order), App. 289a-312a, with an effective date of March
`
`
`
`
`
`6
`
`16, 2017, App. 311a (§ 14).3 The Order revoked the Janu-
`ary Order, App. 311a (§ 13), replacing it with significantly
`revised provisions that address the Ninth Circuit’s con-
`cerns.
`At issue here is Section 2(c) of the Order, which tem-
`porarily suspends entry of nationals from six countries:
`Iran, Libya, Somalia, Sudan, Syria, and Yemen. The sus-
`pension’s explicit purpose is to enable the President—
`based on the recommendation of the Secretary of Home-
`land Security, in consultation with the Secretary of State
`and Director of National Intelligence—to assess whether
`those countries (and others) are providing adequate infor-
`mation “to prevent infiltration by foreign terrorists.”
`App. 299a (§ 2(c)); see App. 295a-296a, 298a-299a (§§ 1(f ),
`2(a)-(c)). The Order explains that each of the six coun-
`tries “is a state sponsor of terrorism, has been signifi-
`cantly compromised by terrorist organizations, or con-
`tains active conflict zones,” which is why Congress and
`the Executive previously designated them. App. 292a
`(§ 1(d)); see App. 289a-290a (§ 1(b)(i)). The Order details
`the circumstances of each country that both give rise to
`“heightened risks” of terrorism and diminish their gov-
`ernments’ “willingness or ability to share or validate
`important information about individuals” needed to
`screen them properly. App. 292a-295a (§ 1(d)-(e)).4
`
`
`3 See Letter from Jefferson B. Sessions III, Att’y Gen., & John
`Francis Kelly, Sec’y of Homeland Sec., to President Donald J.
`Trump (Mar. 6, 2017), https://goo.gl/H69g8I.
`4 Although the January Order’s suspension had included Iraq, the
`Order omits Iraq from the suspension because of “the close coopera-
`tive relationship between” the U.S. and Iraqi governments, and
`because, since the January Order, “the Iraqi government has
`expressly undertaken steps” to supply information necessary to help
`identify possible threats. App. 296a (§ 1(g)); see App. 304a (§ 4).
`
`
`
`
`7
`
`Based on those risks, and to facilitate the review of
`existing procedures, the Order “suspend[s] for 90 days”
`the “entry into the United States of nationals of ” those
`six countries. App. 299a (§ 2(c)). Addressing concerns
`courts had raised, however, the Order clarifies that the
`suspension applies only to aliens who (1) are outside the
`United States on the Order’s effective date, (2) do not
`have a valid visa on that date, and (3) did not have a valid
`visa on the effective date of the January Order. App.
`300a-301a (§ 3(a)). It also expressly excludes other cat-
`egories of aliens that had concerned courts, including
`lawful permanent residents. App. 301a (§ 3(b)).
`The Order contains a detailed provision permitting
`case-by-case waivers where denying entry “would
`cause undue hardship” and “entry would not pose a
`threat to national security and would be in the national
`interest.” App. 301a-303a (§ 3(c)). It provides a nonex-
`haustive list of circumstances in which a waiver could be
`appropriate, including when the applicant seeks entry
`“to visit or reside with a close family member (e.g., a
`spouse, child, or parent) who is a United States citizen,
`lawful permanent resident, or alien lawfully admitted on
`a valid nonimmigrant visa.” App. 303a (§ 3(c)(iv)). Waiv-
`ers can be requested, and will be acted on by a consular
`officer, “as part of the visa issuance process,” or by the
`Commissioner of U.S. Customs and Border Protection.
`App. 302 (§ 3(c)).5 Other provisions of the Order, not at
`issue here, concern the Refugee Program.
`
`
`5 See Bureau of Consular Affairs, U.S. Dep’t of State, Executive
`Order on Visas (Mar. 22, 2017), https://goo.gl/HoNiNz; DHS, Q&A:
`Protecting the Nation from Foreign Terrorist Entry to the United
`States (Mar. 6, 2017), https://goo.gl/WtVwTu.
`
`
`
`
`8
`
`C. Procedural History
`1. Respondents—six individuals and three organiza-
`tions—subsequently filed their operative complaint
`challenging the Order under the INA and the Estab-
`lishment Clause, and moved to “enjoin[] [the Order] in
`its entirety.” D. Ct. Doc. 95, at 1 (Mar. 11, 2017); see
`C.A. App. 254-258. The individual respondents are U.S.
`citizens or lawful permanent residents who claim that
`the Order will prevent or delay a foreign-national family
`member from entering the United States. Four individ-
`uals—John Doe #1, Jane Doe #2, John Doe #3, and Paul
`Harrison—allege that Section 2(c) would prevent family
`members from obtaining visas. C.A. App. 213-214,
`245-252. The other two—Muhammed Meteab and Ibra-
`him Mohomed—allege that family members would be
`denied or delayed admission under the Refugee Pro-
`gram. C.A. App. 249-250, 252.
`One organization, the Middle East Studies Associa-
`tion of North America, Inc. (MESA), alleges that Section
`2(c) will prevent its members abroad from traveling to
`the United States for conferences, deter U.S. members
`from conducting work abroad, and prevent foreign schol-
`ars from attending MESA’s annual meeting in the U.S.
`C.A. App. 213, 243-245. The other two—the Interna-
`tional Refugee Assistance Project (IRAP) and HIAS,
`Inc.—principally provide resettlement services to refu-
`gees and assert injury based on the refugee provisions.
`C.A. App. 210-213, 235-243.
`2. After expedited briefing and argument, the dis-
`trict court enjoined Section 2(c), but not other chal-
`lenged provisions. App. 208a-264a. It held that three
`individual respondents (Does #1-3) have standing to
`challenge Section 2(c) on statutory grounds, App.
`222a-227a, but are not likely to succeed on their “claim
`
`
`
`
`
`9
`
`that [8 U.S.C.] 1152(a) prevents the President from bar-
`ring entry to the United States pursuant to [8 U.S.C.]
`1182(f ), or the issuance of non-immigrant visas, on the
`basis of nationality,” App. 238a. The court held, how-
`ever, that to the extent implementation of the Order would
`involve denying immigrant visas abroad based on nation-
`ality, that would likely violate Section 1152(a)(1)(A). App.
`233a-238a. But because that statutory holding could not
`provide the basis for enjoining Section 2(c)’s entry sus-
`pension, the court proceeded to address respondents’
`constitutional claim.
`The district court held that three respondents
`(Doe #1, Doe #3, and Meteab) have standing to assert
`an Establishment Clause claim and are likely to succeed
`on the merits. App. 228a-230a, 239a-256a. It declined to
`consider whether Section 2(c)’s express national-security
`basis is a “facially legitimate and bona fide reason” under
`Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). App.
`254a-255a. Instead, it evaluated respondents’ claim under
`Lemon v. Kurtzman, 403 U.S. 602 (1971). App. 239a.
`While acknowledging that the Order “is facially neutral
`in terms of religion,” the court held—based primarily on
`campaign statements made by then-candidate Donald
`Trump and subsequent statements by the President’s
`aides—that it was adopted for an improper “religious
`purpose” of preventing Muslim immigration. App. 247a;
`see App. 241a-247a. The court entered a preliminary
`injunction barring any enforcement of Section 2(c) and
`denied a stay. App. 262a-264a.
`3. The government appealed and sought a stay and
`expedited briefing. The court of appeals sua sponte
`ordered initial hearing en banc and heard argument on
`May 8, 2017. On May 25, a divided en banc court largely
`affirmed the injunction and denied a stay. App. 1a-207a.
`
`
`
`
`
`10
`
`a. The majority addressed only respondents’ Estab-
`lishment Clause claim, explaining that the district
`court’s “narrow statutory ruling [was] not the basis for
`[its] broad preliminary injunction.” App. 21a. The
`majority held that one respondent, Doe #1, could raise
`that constitutional claim. App. 26a. On the merits, the
`court reasoned that, although the Order’s “stated
`national security interest is, on its face, a valid reason
`for Section 2(c)’s suspension of entry,” App. 43a, Man-
`del provides only “the starting point” for the analysis,
`App. 38a. Because, in the majority’s view, Doe #1 had
`made “an affirmative showing of bad faith,” it “look[ed]
`behind” the government’s “ facially legitimate justifica-
`tion.” App. 41a-42a (citation and internal quotation
`marks omitted); see App. 45a-46a. Relying primarily on
`statements made by then-candidate Trump in 2015 and
`2016, the majority concluded that the Order was “moti-
`vated” by a “desire to exclude Muslims from the United
`States.” App. 44a, 51a; see App. 48a-52a.
`The majority upheld the nationwide injunction except
`insofar as it enjoined the “President himself.” App. 73a;
`see App. 65a-74a. It held that a violation of respondents’
`Establishment Clause rights itself “constitutes irrepara-
`ble injury” and is not outweighed by harm to the govern-
`ment and public interest. App. 66a (citation omitted); see
`App. 65a-71a. The majority further held that nationwide
`relief is appropriate because respondents “are dispersed
`throughout the United States,” the immigration laws
`“should be enforced vigorously and uniformly,” and
`“enjoining [Section 2(c)] only as to [respondents] would
`
`
`
`
`
`11
`
`not cure the constitutional deficiency.” App. 72a, 73a
`(citation and emphasis omitted).6
`b. Four judges filed concurring opinions. App. 75a-
`145a. Judge Traxler concurred in the judgment. App.
`75a. Judges Keenan, Thacker, and Wynn, each writing
`separately, agreed to varying degrees with the major-
`ity’s Establishment Clause analysis and opined that the
`Order also likely violated various provisions of the INA.
`App. 76a-145a.
`c. Judges Agee, Niemeyer, and Shedd filed dissents,
`and each judge joined each dissent. App. 146a-207a.
`Judge Agee opined that respondents’ Establishment
`Clause claim is not justiciable. App. 191a-207a. “[T]he
`imagined future denial of a visa to [Doe #1’s] wife is
`simply too vague and speculative” to confer standing, he
`concluded, and Doe #1’s alleged “stigma” from the
`Order “is not a cognizable injury” but “simply a subjec-
`tive disagreement with a government action.” App.
`197a-198a. Judge Niemeyer opined that the majority’s
`Establishment Clause analysis “plainly violates” Man-
`del, and its “extratextual search for evidence suggest-
`ing bad faith” both “radically extends” this Court’s
`precedents and “has no rational limit.” App. 157a, 165a,
`170a. Judge Shedd opined that the district court
`“totally failed to respect” the deference due to the
`Executive’s national-security
`judgments, and the
`“shortcomings” in its “selectively negative interpreta-
`tion of political campaign statements” are “obvious.”
`App. 182a, 183a.
`
`
`6 Although the court of appeals correctly recognized that no
`injunction could run against the “President himself,” App. 73a, the
`President remains injured by the injunction because it prevents the
`Executive Bran
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