FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

J O H N D O E #1; JU

A N R A M ON M O R AL E S ; J A

NE D O E , # 2; I R

I S A N GE L I N A C A S T RO ; B LAK

E D O E ; B R E ND A V I L LAR

R UE L ; L A T I

N O N E T WO R

K ; J A NE D O E , # 3; G AB I

N O S O R I A N O C A S T E LLA

N O S , Plaintiffs-Appellees
,

v

.

D ON AL D J. T R

UM P , in his official capacity as President of the United States; U.S. D E P AR

TME NT O F H O ME LA

ND S E C UR

I TY ; C H AD F. W O L F , Secretary, U.S. Departm ent of Hom eland Security; U.S. D E P A R T ME NT O F H EAL T H & H UM A N S E R VI C E S ; A L EX M. A ZAR II, Secretary of Health and Hum an Services; U.S. D E P AR T ME N T O F S TA T E ; M I C H

AE L P O MP E O , Secretary of State, in his official capacity; U N I T E D S TA T E S O F A ME R I C A , Defendants-Appellants. No. 19-36020

D.C. No. 3:19-cv-01743-SI

ORDERD O E # 1 V

. T R U M P 2

Filed May 4, 2020

Before: Sidney R. Thom as, Chief Judge, and Marsha S. Berzon and Daniel A. Bress, Circuit Judges.

Order by Chief Judge Thom as; Dissent by Judge Bress

SUMMARY *

Immigration / Preliminary Injunction

The panel denied the g overnm ent’s m otion for a stay pending appeal of the district court’s prelim inary injunc t ion enjoining Presidential Proclam ation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System

.

Issued on O ctober 4, 2019, the Proclam ation barred, with

som e exceptio n s , i ndividuals seeking to enter the United States o n an imm igrant visa from entering unless they could d emo n s trate that they will b e covered by certain approved health insurance within 30 days o f entry or that they h ave the

resources to cover foreseeable h ealthcare costs. Ind i v i dual Plaintiffs are seven U.S. citizens who are sponsoring f am ily

m em bers f or imm igrant v isas and whose applicant f am ily

m em b ers h av e su ccessf

u lly co m p leted the traditional steps f o r obtaining an imm i gr an t visa, b ut would b e barred from entering the United S tates under the Proclam ation. The

* This summ ary constitutes no part of the opinion of the court. It h as been prepared by court staff for the convenience of the reader.D O E # 1 V

. T R U M P 3

o rg an i zatio n a l P lain

tif f p ro v id es p rogram s aim ed at ed u cating and em power i n g a comm

unity of L atinos in Oregon and provides services to navigate the im m igrant visa process.

First, the panel concluded that the g overnm ent fa i l ed to

m eet its burden of showing irreparable harm ab sent a stay, explaining that: 1) the g overnm en t’ s p erceived institutional injury is n ot “irreparable” because the g o v e rn m ent m ay yet vindicate its interests in this litigation; 2) the g o v ernm ent’s claim of harm in the f

orm o f costs to healthcare providers and taxpayers b y uninsured imm igrants was not supported by the record, and the court was not required to accept the Proclam ation’s conclusory findings as true; and 3) the harm asserted by the governm ent is p ur e l y mo n etary, and such injury is not norm ally considered irreparable.

The panel also concluded that the record am ply supported the district court’s conclusion that Plaint i ffs would suffer irreparable harm absent p r e l i m inary injunctive relief. The panel explained that, based on findings that Plaintiffs and 60% of v isa applicants w ould be unabl e to satisfy the requirem ents o f th e P ro clam atio n , the district court concluded that the Pr oclam ation w ould result in prolonged separation fr o m fam ily m em

bers, a factor that this court has held constitutes sufficient irreparable harm

.

The panel noted that its analysis could con c lude here, giv e n that if a stay applicant cannot show irreparable harm
, a stay m ay not issue, regardless of the petitioner’s proo f regarding the other stay factors, but concluded that the
context of this case suggested that the p anel should proceed with exam ining the rem aining factors.D O E # 1 V

. T R U M P 4

Second, the panel concluded that the governm ent had not

m et the high standard o f s h o wing a strong likelihood o f

success on the m erits. In d o i n g so, the panel observed that,

as a m otions p anel, it m ust take care not to p r e

j ud g e the

me r i t s of the appeal, b ut rather to assess the posture of th e

case in the context o f the n ecessity of a stay pending presentation to a m erits panel. Further, the panel concluded that the go v e rn ment had n ot shown a strong likelihood o f

success on Pl a i ntiffs’ claim that the Proclam ation conflicts with the Violence Against W om en A ct’s am endm ents to the Immi gration and Nationality Act (“INA”), the Affordable Care Act, and the “public charge” provision of the INA.

The panel also considered 8 U.S.C. § 1182(f), the section of the INA that provides that the President m ay, under certain circum stances, “for such a period as he shall deem necessary,

su s p en d th e e ntry of all aliens or any class of aliens

. . . o r im pose on the entry of aliens any restrictions he m ay deem to be appropriate.” T he panel acknowledged that the P resident is o wed broad defe r e n c e with respect to this provision, but nonetheless conclu d e d a t this juncture, for two reasons, that the Plaintiffs are likely to succee d i n refuting the
governm ent’s contention that § 1182(f) le g i tim izes the Proclam ation: 1) the Procla m a t ion’s perfunctory tim e limi t a tions do not com port with the textual lim its o f § 118 2 (f); and 2) § 1182(f) does n ot provide the P resident with lim itless power to d eny visas to imm igrants based on purely long-termeconom ic concerns.

Third, the panel concluded that a stay would substantially injure Plaintiffs, as well other parties, including Twenty-one states, the D istrict of Colum bia, and the City of New York, all of which filed am ici briefing describing the significant harmD O E # 1 V

. T R U M P 5

they and othe r governm ental entities will suffer if the Proclam ation goes into effect.

Fourth, the panel concluded that the public i nterest lies with m aintaining the status q uo while the appeal is pending, explaining that for countless d ecades, a st ab l e imm igration systemhas provided for fam ilies to be united through a visa system that did not require purchase of s e l e cted insurance products. Gi v e n the irreparable h arm to the Plaintiffs, the lack of irreparable h arm to the United States for m aintaining th e status quo pending resolution o f this appeal, and the injury to other parties if the Pr o c lam ation is imm ediately im plem ented, the panel concluded that the public interest favors preserving the status quo

. Finally, the panel concluded that the district court did not abuse its discretion in entering a nationwide injunction. The panel noted that, subsequent to the prelim in ary injunction, the district court certified two nationwide subclasses and that the
governm ent had not yet sought to appeal that certification. Because the class here is nationwide, and becau se a nat i onwide injunction is necessary to provide the class

m em bers with com

plete relief, the panel concluded that the
scope of the injunction is appropriate at this junc ture, regardless of whether or not it was when origin a l ly i s sued. Thus, the p anel concluded that, because the certified class is nationwide and prom otes uniform ity in adm inistering federal imm igration law, the district court did not abuse its discretion as to the scope of the injunction.

Accordingly, the panel denied the m otion and directed the Clerk of Court to expedite the appeal.D O E # 1 V

. T R U M P 6

D issen

tin g , Ju d g e B ress wrote that the m ajority’s d ecisio n is y et the latest exam

p le of this court allowing a universal injunction of a clearly constitut ional Executive Branch imm igration p olicy. First, as to success on the m erits, Judge Bress concluded that the m ajority erred in concluding that the Proclam ation is likely unconstitutional and th a t it conflicts with the INA and other statutes. Second, Judge Br e s s concluded that the governm ent established irreparable harm
to the interests the E xec u tive seeks to p rom ote through the Proclam ation and to the core separation of powers principles that m ake the Proclam ation lawful, and established harm in the fo rm of costs while the injunction rem ains in effect. Third, as to harm to the o pposi n g p arty, Judge Bress wrote plaintiffs had not established that their relat i v e s are entitled
to visas but for the Proclam ation. Fourth, Ju d ge Bress

con c l u ded that the p ublic interest strongly supports staying the injunct i o n , s tating that the m ajority added a new, unauthorized sta y fa ctor: preservation of the status quo. Judge Bress also wrote that, even if m aintenance of the status quo were am ong the factors that courts c o n s i der in this context, the actual status quo is a legal environm ent in which the Proclam ation is authorized.

Finally, as to the scop e o f the injunction, Judge Bress
wrote that the m ajority’s reliance on the district court’s recent class certification decision was a concession that the scope o f the injunction was invalid when is s u e d

. Judge B ress also concluded that the problem with m any natio nwide injunctions, as h ere, is th a t they are prem ised on class certification o rders that are them selves infirm

. Further, Judge Bress wrote that this circuit has co- o p t e d the policy o f
prom oting uniform imm igration laws as a just i fi cation for
courts issuing nationwide injunctions of Execu t ive Branch imm igration policies.D O E # 1 V

. T R U M P 7

C OUNSEL

August E. Flentje (argued), Special Co un s e l; Courtney E. Moran, Trial Attorney; Brian C. W ard, Senior Litigation Couns e l ; W illiam C. Peachey, Director; Joseph H. Hunt, A ssistan t Atto rn ey G eneral; Office of Imm igratio n L itig atio n , United States Departm ent of Justice, W ashin g t on, D.C.; for Defendants-Appellants.

Na o mi A. Igra (argued) and Benjam in Gillig, Sidley Austin LLP, San Francisco, Californi a ; Esther Sung (argued) and Karen C. Tum lin, Justic e Action Center, Los Angeles, California; Nadia H. Dahab and Stephen W

. M an ning, Innovation Law Lab, Port l an d, Oregon; Jesse Bless, Am erican Imm igration Lawyers Association, W ashington, D.C.; Kevin M

. F ee and Scott D. Stein, Sidley Austin LLP, Chicago, Illinois; for Plaintiffs-Appellees.

Michael W

. W eaver, McDerm ott W ill & Em ery LLP, Chicago, Illinois, for Am ici C uriae 38 Health Policy Experts.

Xavier Becerra, Attorney G eneral; M i c h a el L. Newm an, Senior Assistant Attorney General; Kathleen Bo e rgers and Sa ra h E. Belton, Supervising Deputy Attorneys G eneral; Srividya Panchalam
, Marissa Malou ff, and Nimrod Pitsker Elias, Deputy Attorneys General; Office of th e General, Oakland, California; Ellen F. Rosenblum
, Attorney G eneral; Benjam in Gutm an, Solicitor General; Michael C. Kron, Special Counsel; Deanna J. Chang, Senior Assistant Attorney G en eral; D ep artm ent o f Ju stice, Portland, O reg o n ; Mich ael N

. Feuer, Corporation C ounsel, O akland, Ca lifornia; Dennis Herre r a , City Attorney, S an F rancisco, California; Jam es R. W illiam s, County Counsel, Santa Clara, California; Philip J. W eiser, Attorney G eneral, Co l orado; Karl A. Racine,D O E # 1 V

. T R U M P 8

Attorney General, D istrict o f Colum bia; W illiam Tong, Attorney G eneral, Connecticut; Kathleen Jennings, Attorney General, Delaware; C lare E. Conn o r s , Attorney General, Hawai‘i; Kwam e Raoul, Attorney General, and Mark A

. Flessner, Corporation Counsel, Chicago, Illinoi s ; Aaron M. Frey, Att orney General, Maine; B rian E. Frosh, Attorney General, and Andre M. Davis, City Solicitor, Baltim ore, Maryland; Maura Healey, Attorney General, Massachusetts; Dana N essel, Attorney General, Michiga n; Keith Ellison, Attorney General, Minnesota; A ar on D. Ford, Attorney General, Nevada; Gurbir S

. Gr e wal, Attorney General, and Angelo Auteri, Corporation Counsel, Union C ity, New Jersey; He ctor Balderas, Attorney G eneral, New Mexico; Letitia Jam es, Attorney General, and Jam es E. Johnson, Corporation Cousnel, New Y ork, New York; Joshua H. Stein, Attorney General, and Nick H erm an, Counsel, C arrboro, North Carolina; Josh Shapiro, Attorney General, and Marcel S. Pr att, City Solicitor, Philadelphia, Pennsylania; Peter F. Neronha, Attorney Gener a l
, Rhode Island; Thom as J. Donovan Jr., Attorney Gener a l
, Verm ont; Mark R. Herring, Attorney General, Virginia; Robert W

. Ferguson, Attorney Ge n e r a l, and Peter S. Holm es, City Attorney, S eattle, W ashington; J o s h Kaul, Attorney General, W isconsin; for Am ici Curiae States and Cities.

Martha Jane Perkins and Sarah Grusin, National Health Law Program
, Carrboro, North Carolina, for Am ici Curiae National Health Law Prog ram , Am erican Public Health Association, and 48 Other Organizations.

Laura McNally and Neil Nandi, Loeb & Loeb LLP, Chicago, Illinois; Peter S. Margulies, Bristol, R hode Island ; Shoba S iv ap r asad W ad

h ia, Un iv e rsity P ark
, P enn sy lv an ia; f o r Am ici Curiae Imm igration Law Professors.D O E # 1 V

. T R U M P 9

Nicholas Levenhagen and Elizabeth Zirker, Disability Rights C alif o rn i a, S an D ieg o , C alif

o rnia, for Am ici Curiae Disability Rights California, Center for P ub l i c Representation, Disability Rights Advocates, Disability Rights Edu c ation & D ef en se Fund, Disability Rights Oregon, National C o un cil o n Independent Living, National D isability Rights Network, and The Arc.

Daniel B. Asim ov, Arnold & Porter Kaye Scholer LLP, San Fran cisco, California; John A. Freedm an and Jeremy Karpatkin, Arnold & Porter Kaye Scholer LLP, W ashington, D.C.; f or Am ici Curiae CASA, Center for Constitutional Rights, Make the Road New York, and National Imm igration Law Center.

She ry l Garko, Orrick Herrington & Sutcliffe LLP, B oston, Massachusetts, fo r Am ici Curiae Am erican Medical Association, O regon Medical Associat i o n , and Am erican Academy of Pediatrics.D O E # 1 V

. T R U M P 10

ORDER

THOMAS, Chief Judge:

In this case, we consider the governm ent’s m otion to stay the district court’s prelim inary injunction enjoining a Presidential Proclam ation restric t ing fam ily-sponsored imm igrants f

rom enterin g the United States without acquiring specified health insurance. W e deny the m otion. W e direct the Clerk of Court to expedite the appeal.

I

The Imm igration an d Nationality Act (“INA”), Pub. L. No. 82-414, 66 Stat. 163 (1952), allows noncitizens to apply for an imm igrant visa to perm it them to perm anently reside in the United States. 8 U.S.C. §§ 1101(a)(15), 1181(a), 1182(a)(7), 1201(a). Before an i n d ividual m ay apply for an imm igrant visa, a prospective em ployer or a fam ily m em

ber who is a United St a t es citizen or lawful perm anent resident

m ust f ile a sponso r s h ip p etition on behalf of the individual. Id. §§ 1 1 51(a)–(b), 1153. The petition is subm itted to and approved b y U.S. Citizenship and Imm igration Services, which forwards the approved p e tition to the National Visa Center. See id. § 1201. The imm igrant m ust then com

p lete visa p rocessing and schedule an in-person interview before a consular officer at a U.S. em bassy o r consulate. S

ee id. § 1202(a), (e); 22 C.F.R. § 42.62. T he consular officer then

m akes a determ ination to issue or refuse the visa application. See 8 U.S.C. § 1201(a)(1), (g); 22 C.F.R. §§ 42.71, 42.81(a). If an imm igrant falls int o o n e of the ten categories

enum erated in 8 U.S.C. § 1182(a), they are deem ed ineligible for a visa and ineligible for adm ission into the United States.D O E # 1 V

. T R U M P 11

Currently, insured status i s n o t o ne of the criteria for eligibility. See 8 U.S.C. § 1182(a).

On October 4
, 2019, the President issued the Proclam ation in dispute, Proclam ation No. 9 945, e ntitled Suspension of Entry o

f Immigrants Who Will Financially Burden the United States Healthcare S ystem, in Order to Protect the A va ila b ility o

f H ea lth ca re B enefits

for Americans
, 84 Fed. Reg. 53,991. The Proclama t i o n identified the
p erceived problem of uncom pensated m ed ical exp en s es in th e United States, stating, w ithout cita t i o n to any source, “data show that lawful imm igrants are about three tim es m ore likely th an United States citizens to lack health insurance.” To addre ss this issue, the Proclam ation barred, with som e exceptions, individuals seeking to enter the United States on

an imm igrant visa from entering the United S tates unless they could dem o n s trate that they will b e covered by certain approved health insurance within 30 days of entry or that they have the resources to cover foreseeable healthcare costs. Id. at 53,992.

The Proclam ation identified a n arrow definition of what constitutes “an approved health insurance plan,” nam ely:

(i) an em ployer-sponsored plan, including a retir e e plan, association health plan, and
coverage provided by th e Consolidated Omnibus Budget Reconciliation Act o f 1985;

(ii) an unsubsidized health plan offered in the individual m arket within a State;

(iii) a short-term lim ited duration health
p o l i c y e f

f e c t i v e f o r a m i n i m u m o fD O E # 1 V

. T R U M P 12

364 days—or until the beginning of planned, extended travel outside the United States;

(iv) a catastrophic plan;

(v) a fam ily m em

ber’s plan;

(vi) a m edical plan under chapter 55 o f t i t le 1 0
, United States Code, including coverage under the TRICARE program ;
(vii) a v i sitor health insurance plan that provides adequate coverage for m edical care for a m inimum of 36 4 days—or until the beginning of planned, extended travel outside the United States;

(viii) a m edical plan under the Medicare
program ; or
(ix) any other health plan that p r o vides adequate coverage fo r m edical care as determ ined by th e Se cretary o f Health and Hum an Services or his designee.

Id.

By the term s of the Proc la mat ion, Medicaid does not constitute “approved he a l th insurance” for individuals over the age of 18. Id.

The President d irected tha t th e Proclam ation becom e effective at 12:01 a.m

. eastern daylight tim e on Novem ber 3, 2 01 9. On O ctober 3 0, Plaintiffs filed this action. Th eD O E # 1 V

. T R U M P 13

individual Plaintiffs are seven U.S. citizens wh o are sponsoring fam ily m em

be r s for imm igrant visas and whose applicant fam ily m em

bers have successfully com pleted the
tra d itional steps for obtaining an imm igrant visa, but would be barred f

rom entering the United Sta t e s under the Proclam ation. The o rganizational P laintiff is th e Latino Action Network, an organization th a t provides program s aim ed at educating and em powering Latinos in Mu l tn om ah County, Oregon. Th e Latino Action Network also p rovides services to navigate the im m igrant visa process.

On Novem

ber 2, 2019, the district court issued a tem p o rary restraining order preclu d in g th e P ro clam atio n f ro m taking e ffe c t

. See Doe # 1 v. Trump
, 414 F. Supp.3d 1307 (D. O r. 2019). On Novem ber 26, before the expiration of the temp orary restraining order, the d istrict court issued a

n a t i o n w i d e p r e l i m i n a r y i nj u n c t i o n p r o h i b i t i n g im plem entation o f the Proclam ation. Doe v. Trump
, 418 F. Supp. 3d 573, 604 (D. Or

. 2 019). In doing so, the district
court applied the fam iliar Winter factors, concluding that the Plaintiffs ha d s h o wn that (1) they were likely to succeed on the m erit s ; ( 2 ) they w ere likely to suffer irreparable h arm in the absence of prelim inary relief; (3) the balance of equities tipped in their favor; and (4) that a prelim inary injunction was in the p ublic interest. Id. at 579 (citing Winter v. Nat. Res. Defen s e Council, Inc.
, 555 U .S. 7, 22 (2008)). The United States filed this em ergency m otion to stay the district c o urt order pending appeal.

While this stay m otion was pending, on April 7
, 2020, the district court certified the following two subclasses:

The U.S. Petitioner Subclass : Individuals in the United S tates who currently have or willD O E # 1 V

. T R U M P 14

have an approved or pending petition to the United St ates governm ent to sponsor a noncitiz e n fam ily m em

ber for an imm igrant visa; and whose sponsored fam ily m em b er is subject to the Pr o c lam ation and unable to dem onstrate to a c o n sular officer' s satisfaction that h e or she “will be cov e r ed by approved health insurance” within 3 0 days after entry o r will be able “to pay for reasonably foreseeable

m edical costs;” and

The Visa Applicant Subclass : Individuals who are foreign nationals who (I) have applied for or w ill soon apply to the United States govern me nt for an imm igrant visa; (ii ) are otherwise eligible to be granted the visa; but (iii) are subject to the Proc l a mation and unable to d e monstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “ t o pay for reasonably foreseeable m edical costs.”

II

A request for a stay pending appeal is commi t t e d to the

e x ercise of judicial d iscretion. Virginian Ry. Co. v. Un i t e d Sta t es , 2 72 U .S. 658, 672 (1926). A party requesting a stay pending appeal “bears the burden of showing that the circum stances justify an exercise of that discretion.” N ken v. Holder
, 556 U.S. 4 18, 433

– 3 4 (2009). In considering whether to ex e r c ise our discretion in granting the Governm ent’s m otion to stay the prelim inary injunction, we apply the fam iliar standard set forth by the Suprem e Court inD O E # 1 V

. T R U M P 15

Nken
, nam ely: (1) whether the Governm ent has m ade a strong showing o f the likelihood of success on the m erits; (2) whether the appellants will be irreparably injured absent

a stay; (3) whether a stay will substantially inj ur e o ther parties; and (4) where the public interest lies. Id. at 426. “The fi r st two factors

. . . are the m o st critical.” Id

. at 434. We consider the last two f

actors if the first two factors are satisfied. Id. at 435. W e review the scope o f the district court’s p relim inary injunction for abu s e of d iscretion. Cal i f o rni a v. Azar
, 911 F.3d 558, 568 (9th Cir. 2018), cert. den i e d sub nom. L ittle Sisters of the Poor Jeanne Jugan Residence v. California , 139 S. Ct. 2716 (2019).

III

A

Nken instructed “that if the petition has not m ade a certain threshold showing regarding irreparable harm

. . . then a stay

m ay not issue, regardless of the p etitioner’s proof regarding the other stay factors.” Leiva-Perez v. Holder
, 6 40 F.3d 962, 965 ( 9 th Cir. 2011) (per curium ) (citing Nken
, 556 U.S.
at 433–34). W e therefore begin our Nken an a lysis with consideration of irreparable harm

. Cf. Al Otro Lado v. Wolf
, 952 F .3d 9 9 9, 1007 (9th Cir. 2020 ) (listing the Nken factors and explaining, “W e first consider the governm ent’s showing

on irreparable harm
, then discuss the likelihood of success on the m erits under the sliding scale approach”).

The governm ent has failed to m eet its burden of showing irreparable harm

. In the context of a s t ay request, “sim ply showing som e possibility of irreparable injury” is i n s ufficient. N

ken
, 556 U.S. at 434 (citation and interna l quotation m arks om itted). Rather, at this juncture, theD O E # 1 V

. T R U M P 16

governm ent h as the burden o f showing that irreparable injury is likely to occur during the period befo r e the appeal is decided. Leiva-Perez
, 640 F.3d at 968. The governm ent did not satisfy its burden.

The g overnm ent first argues that it will suffer irreparable harm because the prelim inary injunction p revents “ the President from t a k ing action effectuating an Act o f Congress.” But th e question of whether the P roclam ation

c o nflicts with congressionally set qualifications fo r immigrant v isas or exceeds the President’s authority to change these q

ualifications is at the core of this dispute, to be resolved at the m erits stage of this case. Thus, the harm o f such a perceived institutional injury is not “irrepara b l e,” b ecause the g overnm ent “m ay yet pursue and vindicate i t s interests in the full course of this litigation.” Washingt on v. Trump
, 84 7 F.3d 1151, 1168 (9th Cir. 2 017) (per curium ), cert. denied sub nom. Golden v. Washington , 138 S. Ct. 448 ( 2 0 1 7 ). Indeed, if w e were to adopt the governm ent’s assertion that the irreparable harm standard is satisfied by the fact of executive action alone, no act of the executive branch asserted to be inconsistent w ith a legislative enactm ent could be the subject of a prelim inary injunction. That cannot be so.

The governm ent n e x t argues that it will be irreparably harm ed during the pendency of the appeal be c ause of the alleged substantial cost to healthcare providers and taxpayers by uninsured imm igrants. For support, the governm ent sim ply cites to the statem en t in the Proclam ation that recent imm igrants are three tim es m ore likely than citizens to lack health insurance. There is n o citation in the P roclam ation for this statistic, n o r i s one to be found anywhere in the record. Nor could the gov ernm ent p rovide any source for thisD O E # 1 V

. T R U M P 17

assertion in briefing or at oral arg um ent. And the Proclam ation contains no further cost quantification.

By contrast, the Plaintiffs placed into the record evidence that uninsured imm igrants represent only 0.3% of Am erican adults and o nly 2.9% of uninsure d a du lts. The record evidence also shows that uninsured imm igrants use less than 0.06% of to t a l Am erican m edical resources and only 0.08% of em ergency service expenditures. These statistics include illegal as well as legal imm igrants, so the num bers pertinent here m ay be considerably lower. The record f urther indicates that imm igran t s ar e m ore likely to represent “favorable insurance risk[s]” in Affordable Care A ct (ACA)

m arketplaces b ecause they tend to b e relatively healthier than the norm al in su

red p o p u l ation and use fewer healthcare goods and services. F or instance, in California, imm igrants who are insured through an ACA-compliant plan (which, if subsidized, are not pe rm itted under the Proclam ation) have 10% lower m edical claim s than citizen enrollees in the sam e plans. As a result of excl u d i n g low-risk consum ers, the overall heal th of the risk pool will d ecrease, resulting in increased prem i um s for all consum ers using state

m arketplaces.

The governm ent claim s that we are precluded from reviewing the Proclam ation’s conclusory findings and m ust accept them as true. This assertion runs afoul of N ken
, which places the burden o n the governm ent, and instructs us only to exercise our discretion to enter a stay when irreparable harm is probable, not m erely possibl e. 556 U.S. at 434. The
governm ent cannot m ee t this burden by subm itting conclusory factual assertions and speculative argum ents that

are unsupported in the record. S ee Azar
, 911 F.3d at 581. In this respect, this Proclam ation’s findings stand in starkD O E # 1 V

. T R U M P 18

contrast to the proclam ation’s findings in Trump v. Hawaii
, 1 38 S. Ct. 2392 (2018). T h at case involved a proclama ti o n that set forth “extensive findings,” which the President f ound after ordering the rele vant agencies to “conduct a

com prehensive evaluation” of the countries affe c ted by the proclam ation, and the proclam ation then tailored its findings
to the agencies’ recomm endations. See id. at 2408. Thus, in assessing whether the govern me n t has m et its burden, we

m ust exam ine and review the entire record, not sim ply rely on

one unsupported conclusory statem ent. See Washington
, 847 F.3d at 1162–63.

Even if we credit the Proclam ation’s assertio n s , the
governm ent has not dem onstrated that the healthcare system will be irreparably burdene d while this appeal is pending. Th e record evidence shows that m any of the imm igrants affected b y th e Proclam ation could obtain som e f orm o f insurance that would reduce their already m inim al contribution to hea l thc are costs, but these imm igrants are nonetheless inadm issible under the Pro clam ation because they cannot obtain an “ approved” health insurance plan o r cannot obtain a plan within the 30-day deadline. In short, the record evidence shows that the im pact of un insured imm igrants on uncom

pensated healthcare costs is m inim al, and that m any of the affected imm igrants could obtain health insur an c e i f perm itted to look beyond the plans and 30-day l i m itation in the Proclam ation. The governm ent ha s subm itted no evidence disputin g these points.

Further, the harm asserted by th e governm ent is purely

m onetary, and “‘m onetary injury is not norm ally considered irreparable.’” hiQ Labs, Inc. v. LinkedIn Corp.
, 938 F.3d 9 8 5, 993 (9th Cir. 2019) (quoting Los Angeles Mem’l Coliseum Comm’n v. Nat’l Football League
, 634 F.2d 1197,D O E # 1 V

. T R U M P 19

1202 (9th Cir. 1980)). In addition, m onetary injury t o third parties, such as health c are p roviders, or to the economy in general provides an even w eaker justification for a finding o f “irreparable harm .” After all, the Nken irre p ar ab le harm standard is “whether the a pplicant will be irreparably injured absent a stay.” 556 U.S. at 426 (emphasis added).

By contrast, the district court concluded that the evidence dem onstrated that Plaintiffs would suffe r irreparable harm absent prelim inary injunctive relief and that the governm ent

was unlikely to succeed in showing o th e rwise. Doe
, 4 18 F. Supp. 3d at 5 99. The Plaintiffs subm itted e v i d ence that all

seven individual Plaintiffs are either unable to afford an “approved” plan, unable to add the imm igrant fam ily m em ber
to an existing em

ployer-sponsored plan, unable to acquire an

approved plan within the 30-day deadline, or lack the

resources to dem onstrate they could independently p ay for foreseeable m edical costs. See id. at 584–86.

The d istrict court concluded that the Proclam ation likely would negatively affect approxim ately 60% of all imm igrant visa applicants. Id. at 597. Plaintiffs aver, citing data from the United States Census Bureau, that approxim ately 375,000 imm igrants each year—prim ari l y those seeking to enter the United S tates on f

am ily-sponsored petitions—would be affected, and potenti a lly precluded f rom obtaining an imm igrant visa, by the Proclamation.

Based on the evide nce in the record, the district court found that the approved insurance plans d e lineated in the Proclam ation were “legally or practic a l ly unavailable to intending, or prospective, imm igrants.” Id. a t 5 83. The district court found that em ployer-based plans oft e n had a waiting period that exceeded the Pr oclam ation’s 30-dayD O E # 1 V

. T R U M P 20

deadline and highlighted the fact that the prohibition against obtaining subsidized in su

ran ce u n d er th e A f

f o rd ab le Care A ct rendered that m arket, for the m ost part, inaccessible to

arr i v ing imm igrants. Id. It also highlighted the fact that Sh ort Term Lim ited Duration Insurance plans, which w e r e

a mo n g the Proclam ation’s “approved” plans, are banned i n California, and that Oregon’s contract term requirem ents

m ake such p lans ineligible under the Proclam ation there. Id. The district c o urt underscored that reliance o n Medicaid for
any imm igrant over the age of 18 is prohibited b y the Proclam ation.

As to the other “approved” plans, the distric t c o urt explained that:

Fam ily-m em

ber plans are only available to applicants young e r than 27 years old. Visitor’s ins urance plans are d esigned for short-term v isits, have caps on individual
coverage and lifetim e b e nefits, and often exclude preexisting conditions, m ental health condition s , and m aternity care. Such plans often result in significant uncom pensated

care. P eople who receiv e insurance through
state Medicaid program s m ay not be able to add thei r fam ily m em

bers to their plan. Catastrophic p l ans are o nly available to people who are already legally present. Even then, only pe o ple under 30 (or who obtain a special hardship exem

p tion) ar e eligible to enroll. TRICARE is available only to

m em bers of the United S tates m ilitar y and their close relatives. Medicare is perhaps the le as t f easible o ption—only intending [that]D O E # 1 V

. T R U M P 21

imm igrants o lder than 6 5 who have already been living continuously in the United States for five years m ay enroll.

Doe , 418 F. Supp. 3d at 583–84.

The d istrict court concluded, based on th e record evidence, that the Proclam ation would result in prolonged separation from fam ily m em bers, a facto r th a t we have held constitutes suffici e n t irreparable harm

. Hawai’i v. Trump
, 87 8 F.3d 6 62, 699 (9th C ir. 2017), rev’d on other grounds and remanded
, 138 S. Ct. 2392 (2018); see also Washington
, 8 47 F. 3 d at 1168–69. F or exam ple, the district court f

ound that one of the Plaintiffs risks having his wife’s I-601A waiver autom atically revoked if she is d enied a visa at her interview. See Doe
, 418 F. Sup p. 3d at 598. The district
court further found that Plaintiffs who h ave already s ecured I-601A waivers through their fam ily m em ber sponsors had a high risk of b eing force d to leave the United States for an indefinite period of tim e. Id

. Based on the record, the district
court determ ined that the Plaintiffs w ere unlikely to acquire

one of the “approved health insurance” plans set forth in the Pr o clam ation, but w ere otherwise likely qualified for entry under § 1 1 8 2 ( a )

. Id

. In sum , without reciting all of the

r e c o r d evidence, the record am ply supported the district court’s conclusion that the Plaintiffs would suffer irreparable harm

.

Ultim ately, the governm ent has fa i l e d to sustain its burden of establishing that it w ould suffer irr e parable harm absent a stay of the prelim inary injunction pending a hearing by a me r i t s panel. The record supports the district court’s conclusion th at the Plaintiffs would suffer irreparable harm absent a prelim inary injunction.D O E # 1 V

. T R U M P 22

B

Our Nken analysis could conclude here, given that if a stay applicant cannot show irreparable h arm , “a stay m ay not issue, regardless of the petitioner’s proof regarding the other stay factors.” Leiva-Perez
, 640 F.3d at 96 5. However, the
context o f this case suggests that we should procee d wi th

exam ining the rem aining Nken factors.

The second m ost im

portant N ken fa c t or is whether the applicant has m ade a strong s h o wi n g of the likelihood o f

success o n the m erits. See Nken
, 5 5 6 U.S. at 426. As a

mo t i o ns panel, we m

ust take care not to prejudge the m erits of the appeal, but rather to a ssess the posture of the case in the context of the n ecessity of a stay p ending presentation to

a m erits panel. See Washington
, 847 F.3d at 1168. Thus, we will n ot address the m erits in d etail, but only as necessary to apply the Nken factors. H ere, the governm ent has not m et the high standard of showing a strong likelihood of success on the m erits.

1

The governm ent has n ot shown that it has a strong likelihood of success on the Plaintiffs’ claim that the Proclam ation conflicts with th e Violence Against W om en Act’s (“VAWA”) am endm ents to the INA. See 8 U .S. C. § 1182(a)(4)(E). Indeed, on this claim the governm ent has

m ade no showing at all.

The VAWA am endm ents exem pted from the public charge exclusion certain imm igrant relatives of v ictim s of v iolent crim es, such as felony assault, sexual assault, incest, kidnapping, or hum an trafficking. 8 U.S.C.D O E # 1 V

. T R U M P 23

§ 1 1 0 1(a)(15)(U)(iii). T hese am endm ents also exem pted victim s of battering and extrem e cruelty. 8 U.S.C. § 1154(a)(1)( A)(iii)–(vi). Congress expressly p rovided that these imm igrants—including the spouses, children, and parents of violent crim e v ictim s—were categorically exem pt from the financial burden or “public charge” provisions of the INA. Id.

The Proclam ation m akes no such ex e mp t i on. Rather, it effectively prohibits fam ily m em bers of v iolent crim e v ictim s from obtaining visas and joining their fam ilies in the United States by declaring the m to b e financial burdens and inelig ib l e , d irectly contradicting VAWA. This preclusion
contravenes the well-settled principle that the Presid ent’s
powers are e x e cutive, not legislative, in nature. “[T]he President’s power to see that the laws are faithfully executed refutes the idea that h e i s t o be a lawm aker.” Youngstown Sheet & Tube C

o. v. S awyer , 3 43 U.S. 579, 587 (1952). The President’s authority to act “m ust stem either from an act o f Congress or from the Constitution itself.” I d

. at 585. H ere, Congress has enacted the VAWA am endm ents specifically to enable the sub

ject imm igrants to qualify for adm ission and visas, see 8 U .S.C. § 1154(a)(1)(A)(iii)–(vi), and “[t]here is

no provision in the Constitution that authorizes the P resident
to enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524 U.S. 417, 438 (1998).

The g o ve rn ment does not respond to the m erits of this challenge; it only suggests that the statutory conflict does not affect m any people. Of course, this con s i d er ation is irrelevant to the determ ination o f whether the governm ent has dem onstrated a strong likelihood of success of prevailing on the VAWA issue. By contrast, Plaintiffs point out that imm igr ant fam ily m em

b ers of v ictim s of v iolent crim esD O E # 1 V

. T R U M P 24

com prise at least 20 categories of noncitizens seeking to enter the United States with an imm ig r an t v isa. See 22 C.F.R. § 42.11.

At this stage, the governm ent has failed to m ake a strong showing that it is likely to prevail on Plaintiffs’ claim that the Proclam ation conflicts with the Vi o l ence Against W om en Act.

2

The governm ent h a s also not sustained its b urden o f

s ho wi n g that it has a strong likelihood of success of prevailing on Plaintiffs’ claim that the Proclam ation v iolates the ACA. See 42 U.S.C. §§ 18021 to 18024, 18031; see also 26 U

. S .C. § 3 6B. The governm ent has not subm itted any evidence to indicate that it is likely to succeed on this claim

.

In enacting the ACA, Congress authorized the creation o f state-based m arkets that pr e sent consum ers with m u ltiple insurance coverage choices so tha t consum ers can com pare and purchase p l ans in an effort to “increase the num ber o f Am ericans covered by health insurance and decrease the cost of health care.” Nat’l F

ed’n of Indep. Bus. v. Sebelius
, 132 S. Ct. 256 6
, 2 5 80 (2012). To purchase insurance in a state’s

m arketplace, an individual m u st prove that they reside in the United States or a territory thereof and that they are “lawfully present.” 4 2 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F.R. § 155.3 0 5 (a)(1 )– (3 ). T o in centiv ize the purchase o f insurance plans through ACA m arketplaces, C ongress provided
prem ium tax credits to offset the cos t s o f p urchasing an insurance plan and expressly extended the av a ilability o f those credits to any taxpayer who “is an alien lawfully present in the United States.” 26 U.S.C. § 36B(c)(1)(B)(ii).D O E # 1 V

. T R U M P 25

Despite Congress’s clear intent to extend these tax credits
to legal imm igrants, the Proclam ation exp licitly excludes such “subsidized plans” f rom the list o f approved health insurance plans. As a result, an imm igrant a t t e mp ti ng to legally enter the United States will n ot have acc e s s t o ACA
tax credits as Congress intended. Compare 84 Fe d

. Reg. at 53,992 to 26 U.S.C. § 36B(c)(1)(B)(ii). And, unless an imm igrant succeeds in searching for, finding, and p aying for eligible insurance—which is unlikely—they will n ot b e able
to legally imm igrate, even if otherwi s e e ligible under the criteria Congress established.

Additionally, the governm ent’s contention that an imm igrant m ay satisfy the Proclam ation by purchasing a plan that does not include tax credits (i.e., an “unsubsidized” plan) under the ACA is, in practice, nearly im possible, even though

s uc h p l a n s a r e t e c h ni c a ll y “ ap p r o v ed ” un d e r th e Proclam ation. S

ee 84 Fed. Reg. at 53,992. An imm igrant

m ay only participate in the ACA m arketplace after they have established both their residency and lawful presence, but the imm igrant cannot reside in and b e l egally present in the United States un d er the Proclam ation without first purchasing “approved” health insurance. S ee 42 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F. R. § 155.305(a)(1)–(3). The imm igrant is consequently left i n a Catch-22: they cannot obtain an “approved” un su b s id ized in su

ran ce p lan un less they have been legally adm itted, but they cannot b e l egally adm itted unless they have obtained an “approved” insurance plan. Thus, the Proclam ation bars imm igrants from accessing subsidized insurance plans despite Congress’s express intent
to extend those plans to l e g al imm igrants, 26 U.S.C. § 36B( c)(1)(B)(ii), and it essentially prohibits imm igrants from obtaining an unsubsidized plan despite such plans beingD O E # 1 V

. T R U M P 26

“approved” under the Proclam ation. The governm ent has not seriously contested this claim

.

In sum , given that the evidence in the reco r d s up ports a conclusion that the P roclam ation p revents otherwise eligible imm igrants from accessing either subsidized or unsubsidized health insurance p l ans as Congress intended and instead requires them to obtain

—if th ey can—different, lower quality i n s ur ance to be eligible for a visa, we conclude that th e governm ent has not shown that it is likely to succeed on this claim

.

3

The governm ent has also not sustained its burden o f

s ho wi n g that it has a strong likelihood of success o f prevailing on Plaintiffs’ claim s that the Proclam ation v iolates the INA. Altho u gh we leave a com plete analysis of these claim s to the m erits panel, several of these claim s are worthy of discussion at this stage, in light of the serious questions on the m erits Plaintiffs raise

. S e e All. for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1137 (9th Cir. 2011).

First, th e P ro clam at io n i s co nnected in its avowed purpose to the INA’s “public charge” provision. That provision states that “[a]ny alien who, in the opinion of the consular officer at the tim e of ap p l i cation for a visa, or in the opinion of the Attorney General at the tim e of application for adm ission o r adjustm ent of status, is likely at any tim e to becom e a public charge is inadm is sible.” 8 U.S.C. § 1182(a)(4)(B)(i). The
statute lists various factors that the consular office can consider. Health insurance is not am o ng them

.D O E # 1 V

. T R U M P 27

Mor e im portantly, the statute requires that all of the
sp ecif ied f a cto rs sh ould be considered in d etermin in g wh eth er

an applicant should be deem ed a financial burden and consequently inadm issible. 8 U.S.C. § 1182(a)(4) ( B). The Proclam ation eviscerates the statutory schem e by m aking the acquisition of designated f orm s of health insurance the sole consideration of whether an applicant should b e excluded from consideration for a fam ily visa. Se e 84 Fed. Reg. at 53,992. Any argum ent contending that the P roclam ation

com plem ents the public charge statutory schem e is therefore incorrect.

Regarding § 1182(a)(4)(B), we have recognized that this provision establishes “factor s [that] are to be considered ‘at

a m inimum ,’” but “[o]ther f actors m ay be considered as well, giving officials considerab l e discretion in their decisions.” City & Ct y

. o f S a n Francisco v. U

SCIS
, 944 F.3d 773, 972 (9th Cir. 2019). The Pro c l a mation does not perm it any exercise of official di s c re t io n , as the enum erated § 1182(a)(4)(B) fa c to r s do, but instead im poses an absolute bar on the entry of uninsured imm igrants. For instance, one of the individual Plaintiffs has subm itted evidence that he could add his wife to h is em p loyer’s healthcare plan once she obtained a social security card, b u t social security cards are not m ailed quickly enough to m eet the 30-day deadline

m anda te d b y the Proclam ation. Even in this situation, the

c o n sular officer has no discretion to consider that th e Plaintiff’s wife can obtain an approved health insurance plan and that this factor w ould weigh against finding that sh e is likely to becom e a p ublic charge under § 1182(a)(4)(B). Instead the officer m

ust find that she is inadm issible because she cannot o btain this insurance w ithin 30 days. W ithout the Proclam ation, the o fficer would have the discretion to consider her adm issible, as § 1182(a)(4)(B) intended. In sum ,D O E # 1 V

. T R U M P 28

the Proclam ation’s health insurance requirem ent supplants
t h e d i s c r e t i o n a f

f o r d e d t o c o n s u l a r o f f i c e r s i n § 1182(a)(4)(B).

Second, the Plaintiffs raise serious questions related to § 1182(f) of the INA. This section of the INA provides that, when “the President finds that the entry of any aliens or any class o f aliens into the United S tates would be detrim ental to the interests of the United States,” then he m ay, “for such a period as he shall d e em necessary, suspend the entry of all aliens or any class of aliens

. . . o r i mp o s e on the entry o f aliens any re s tr i c tions he m ay deem to b e appropriate.” 8 U.S.C. § 1182(f). S ection 1182(f) “exudes deference to the President.” Hawaii
, 138 S. Ct. at 2408. W e ac kn o wl e d g e this b road deference, but n o netheless conclude at this jun c tur e , for two reasons, that the Plaintiffs are likely to succeed in refuting the govern m ent’s contention that § 1 1 8 2 ( f) l e g i t i m i ze s th e Pr oclam ation: fir s t , th e Proclam ation’s perfu n ctory tim e lim itations do not com port with the textual lim its of § 1182(f); and second, § 1182(f) does not pro v i d e th e President w ith lim itless power to deny visas to imm igrants based o n p urely long-term econom ic

concerns.

We f irst consider whether the Proclam ation com po rt s with the tem

poral lim itations of § 1182(f) established b y the
statute itself: that the President has the power to “sus p e n d ” the entrance of ali en s “for such period as he shall deem necessary.”

“[A]s with any statute, ‘we look first to its language, givin g th e words used their ordinary m eaning.’” R oberts v. Sea

-La n d Servs., Inc.
, 566 U.S. 9 3, 100 (2012) (quoting Ingalls Shipbuilding Inc. v. Dir., Office of Workers ’ Co mp.D O E # 1 V

. T R U M P 29

Progs.
, 519 U.S. 248 (1997)). Ordinarily, to “suspend”

m eans to “cause to stop t e m p orarily,” Suspend
, M ER R I AM

W E B S T E R D I C T I ON

AR Y (2019), o r “co nnotes a deferral till later,” Hawaii
, 138 S. C t. at 2 409 (citation om itted). The Proclam ation summ arily states that the entrance of “aliens who w ill b urden the healthcare system is hereby suspended,” but the m ere use of the word “suspend” does not rem edy the fact that the P roclam ation o m its any indication that the health insurance requirem ent is tem porary. See 84 Fed. R eg. at 53,992. Instead, the Proclam ation ties the putative

su sp e n sio n to th e p r o b lem o f u n co m p en sated healthcare c o sts,

a speculative argum ent given that th i s problem has no apparent resolution under the current healthcare system

.
By the Proclam ation’s own term s, it d o es not have an endpoint. Rather, it only requires periodic status reports and

m erely provides that if the Secretary of S tate, after consulting other officials, “ d eterm ines that circum stances no longer
warrant the continued effectiveness of the suspension

. . . the Secretary shall imm ediately advise the President.” See 84 Fed. Reg. at 53,993

. There is no requirem ent that the President act on the adv ic e. Although § 1 182(f) does not require an explicit duration, see Hawaii
, 138 S. Ct

. at 2410, the lack of an explicit tim e lim itati on i s problem atic in light of the absence of any language that suggests even an im plicit lim itation, such as a lim it m eas ur ed by the occurrence o f

som e future event o r condition. Th e Pr oclam ation h ere is therefore distinguishable from the Proclam ation at issue in Hawaii
, which “m a[de] clear that its ‘conditional restrictions’ will rem ain in force only so long as n ecessary to ‘address’ the identified ‘inadequacies and risks’ within the covered nations.” Id. To achi e v e its goal, the Hawaii P roclam ation established “an ongoing process to engage cove r e d nations

an d assess every 1 80 days whether the entry restriction sD O E # 1 V

. T R U M P 30

should be m od i fi e d or term inated,” and the P roclam ation

s tated that it aim ed to “‘relax[ ] or rem ove[ ]’ the e n try restrictions ‘as soon as possible.’” Id.

B y contrast, the Proclam ation here includes no su g g e stio n that the health insurance requirem ent is tem porally lim ited by anything, including the o verall reduction i n uncom pensated healthcare costs. Although the S ecretary of State will review the effectiveness of the pr o g r am in 1 80 days and, from then on, on a yearly basis, see 84 Fed. Reg. at 53,993, there is no language that suggests that the requirem ent will be rem oved “as s o o n a s possible,” or when any specified circum stance changes. Cf. Hawaii
, 138 S. Ct. at 2410. Furtherm o re, unlike the Proclam ation in Hawaii
, which wa s prom ulgated after DHS and other agencies “conducted a com p rehensive evaluation of every single country’s com pliance with the inform ation and risk assessm ent base l i n e , ” id. at 2408, the Proclam ation here was n ot issued following any sort o f

com prehensive agency r e v iew supported by d ata-driven analysis. Indeed, the governm ent has subm itted no evidence
to suggest th a t the health insurance requirem ent will reduce

uncom pensated healthcare costs in such a way as to render the lim itation feasibly temporary.

For exam ple, the Proclam ation states that uncom pensated healthcare costs have “exceeded $35 billion in each of the last 10 years,” an d suggests that this figure could b e lowered by refu s i ng to adm it imm igrants who lack approved health insurance. See 84 Fed. Reg. at 5 3,991. However, d ata in the record indicates that uncom p ensated health care costs haveD O E # 1 V

. T R U M P 31

rem ained around $35 billion since at least 2001. 1 As stated above, we credit the Plaintiffs ’ e v idence that uninsured imm igrants contribute m inim ally to this am ount. These facts call into question whether the Proclam ation is consistent with the direction t o “ suspend” imm igration for so long as necessary to effectuate the governm ent’s go a l o f decreasing

uncom pensated healthcare costs.

The Proclam ation’s longevity is continge nt upon the dim inishm ent of uncom

pensated healthcare costs—costs that have rem ained stable f

or at least two decades—which it purports to reduce by restricting e ntry o f a class o f imm igrants that has been shown not to significantly affect that f igure, and whose dollar im pact on uncom

pensated costs will likely rem ain static, whatever happens to uncom pensated
costs in general. Consequently, the likely ineffectiveness o f
t h e h e a l t h i n s u r a n c e r e q u i r e m e n t s u g g e s t s t h a t

uncom pensated care costs will rem ain high, an d th e perceived “necessity” o f the Procl a mation could therefore continue in perpetuity. Cf. Hawaii
, 138 S. Ct. at 2410 (“[W ] hen a president suspends entry in response to a diplom atic dispute

or policy concern, he m ay link the dur ation of those
restr i ctions, im

plicitly or explicitly, to the resolution of the triggering condition.”). In short, th e Proclam ation’s failure
to explicitly o r im

plicitly establish any tim e constraints on the health insurance prohibition raises serious questions as to

1 S e e I NS TITU TE O F M ED I CIN E (US) C O M M ITTEE O N TH E C O N S EQ U EN C ES OF UN IN S U RA N CE , H ID D EN C O S TS , V A L U E S L O S T 4 7 (2003) (available at https://www.ncbi.nlm .nih.gov/ books/NBK221662/);

see also Am erican Hos p i t a l Association, Uncom pensated Hospital Care Cost Fact Sheet 3 ( Jan

u ar y 2 0 1 9 ) ( htt

p s: / / www

. a h a.o r g/ system

/ f i les/2019- 0 1 /u n c o mp e n s a t e d

- c a r e -f a c t

- s h e e t

- j a n

- 2 0 1 9

. p d f

) ( e s t ab l i s h i n g t h a t

uncom pensated h ealthcare costs totaled approxim ately $21.5 billion in 2001, which is roughly $32 billion when adjusted for inflation).D O E # 1 V

. T R U M P 32

whether the Proclam ation is a “suspension” according to the plain m eaning of the termin § 1182(f).

W e turn now to Plaintiffs ’ second challenge to the
g o v ernm ent’s argum ents concerning § 1182(f)—nam ely
, th at the President exceeded even the broad authority prescribed to him in § 1182(f) when he issued the Proclam ation. Based on the evidence in the record and th e stated o b jectives of the Proclam ation, we conclude that the governm ent is not likely to succeed on this issue either.

W e acknowledge that “[b]y its plain language, § 1182(f) grants the President broad discretion to suspend the entry o f aliens into the United St a t e s .” Hawaii
, 138 S. Ct. at 2408. Nonetheless, the substantive scope of this p o we r is not lim itless. T he “sole prerequisite set f orth in § 1182(f) is that the President ‘find[ ]’ that the entry of the covered aliens ‘would be detrim ental to the interests of the United States.’” Id. The President sa t i s fied this prerequisite in H awaii because “the entry policy [in the Proclam ation was] plausibly related to th e Governm ent’s stated o bjective to protect the country and improve vetting processes.” Id. at 2420. Thus, there, the President acted within the traditional spheres authorized by § 1182(f): in the context of international affairs and n a t i o nal security, and working in tandem with the congressional goals o f vetting i n d i v iduals from countries identified as th r ea t s through an agency review. See id. at 2409, 2412.

By contrast, the Proclam ation h e r e deals with a purely d o m estic e co n o m ic p r o b lem : un com p ensated h e alth care co sts in the United States. S

ee 8 4 Fed. R eg. at 53,991. W e reject the governm ent’s argum ent that the P roclam ation im plicates the President’s foreign affairs powers sim ply because theD O E # 1 V

. T R U M P 33

Pro c la mation affects imm igrants. Cf. E. Bay Sanctuary Covenant v. Trump
, 950 F.3d 1 242, 1279 (9th Cir. 2 020) (“Broadly citing to the Rule’s imm igration context is insufficient to invoke the foreign-affairs exception” so that the President does not have to follow the traditional pathways

o f p ublic rulem aking.). Therefore, while the “Presiden t [m ay] adopt[ ] ‘a preventive m eas ur e

. . . in the context o f international affa ir s and national security,’” and he is then “‘not require d t o conclusively link all of the pieces in the puzzle b efore [ courts ] g r ant weight to [his] em p irical conclusions,’” Hawaii
, 138 S. Ct. at 2409 (quoting Holder v. Humanitarian Law Project
, 561 U.S. 1, 3 5 (2010)), h is power is m or e circum scribed when he addresses a purely dom estic

econom ic issue, see E. Bay Sanctu a r y Co venant , 950 F.3d at 1279.

Indeed, in dom estic econom ic m atters, the national security and foreign affa i r s justifications for policy im plem entations disappear, an d the norm al policy-m aking channels rem ain the default rules of the g am e. For instance, the “public charge rule” discussed above attem p ts to resolve sim ilar concerns related to the perceived financial burden o f imm igrants w ithout resorting to § 1182(f) for justifi c a ti o n. See City & Cty. of S.F.
, 944 F.3d at 779–80 (explaining that the proposed rule interpreting this provision of the INA went through the typical notice-and-com m ent peri o d under the Adm inistrative Procedure Act). In contrast, the P roclam ation here was issued with virtuall y no factual findings, m inim al reasoning, and an extr eme l y lim ited window f o r public

comm ent, raising serious questions as to whether the President has effectively rewritten provisions o f the INA. W e therefore find it unlikely that the governm ent will succeed in its broad reliance on § 1182(f).D O E # 1 V

. T R U M P 34

Again, w e do not prejudge the resolution of the m erits o f this issue because the question is whether the governm ent has shown a strong likelihood of success o n the m erits. The Pla i ntiffs have raised sufficiently serious questions on the

m erits of their INA claim
, including on the govern m e n t ’s defenses, that we cannot conclude that the govern me n t has sustained its high burden of showing a s tr o n g likelihood o f success of the m erits.

4

The district court issued a lengthy, thoughtful, and forceful o pinion focusing on whether the Proclam atio n violated the nondelegation doctrine. In deference to the

m erits panel, we decline to address the probable likelihood o f

success for either p arty on this claim

. See Washington
, 847 F.3d at 1168.

In addition, the Plaintiffs have raised a num ber of issues
not addressed by the district court, such as the violation o f the Adm inistrative Procedure Act, which also m ay present serious questions on the m erits.

C

The third Nken factor is whether a stay will substantially injure o ther parties, o n which we touch only briefly given the
governm ent’s failure to satisfy the two m ost im portant Nken factors. See Nken
, 55 6 U. S. at 4 35. W e have already explained that the plaintiffs have established irrepara b le injury. See Part III.A, supra

. In a d d i ti o n , the record dem onstrates the significant effect of the Proclam a t ion on other parties

. Twenty-one states, the District of Colum bia, and the City of New York filed am ici briefing describing theD O E # 1 V

. T R U M P 35

significant harm they and other governm ental entities wi ll suffer if the Proclam ation is allowed to go into effect. These

am ici explain that imm igrants “are vital to th e econom ic, civic, and social fabri c o f our states and city.” Indeed, the evidence in the record indicates that in 2 014, imm igr an t-led households paid m ore than $26 b illion in state and local taxes in California, 2 and $736 m ill i o n in state and local taxes in Oregon. 3 P laintiffs and am ici provided further evidence credited by the district court to satisfy this fa ct o r

. S ee Doe
, 418 F. Supp. 3d at 599–600 (crediting evidence th a t the im plem entation of the Proclama t ion will interrupt f am ily

r e u n i f i c a t i o n , d e tr ime n t a l l y a ff e c t j o b s e c t o r s t h a t disproportionately em

p loy imm igrants, and increase the

num ber of underinsured imm igrants who will be prohibited from purchasing subsidized A CA insur an ce plans). The
governm ent does not serio u sly contest this evidence. This factor favors the Plaintiffs.

D

The f inal Nken f

actor is where th e p ubl ic interest lies. “The purpose of a prelim inary injunction is always to prevent irreparable injury so as to preserve the court’s ability to render a m eaningful d ecision on the m erits. It often happens that this purpose is furthered b y the status quo, but not always.” G olden Gate Restaurant Ass’n v. City & Cty. of San Fr a ncisco
, 512 F.3d 1 112, 1116 (9th Cir. 2008) (quoti n g

2 A m

. Immigration Council, Immigrants in California 4 (2017) (https://tinyurl.com

/CAP-Im m i grants-in-CA).

3 Am

. Im

m igration Council, Immigr a n ts in Oregon (2017) ( h t tp s : / / w w w

. a m e r i c a n i m m i g r a t i o n c o u n c i l

. o r g / r e s e a r c h / i m m i g r a n t s

oregon).D O E # 1 V

. T R U M P 36

Canal Authority of Florida v. Callaway
, 4 8 9 F.2d 567, 576 ( 5th Cir. 1974)). In this case, the public interest lies wi th

m aintaining the status quo while the appeal is pending. For countless decades, a stable imm igration system has provided for fam ilies to be united through a visa system that d id not require purchase of selected insurance products for entry into the United States.

The g overnm ent contends this f actor we i g h s in its favor because the Proclam ation as im plem ented constitu tes the
status quo , wh ich would be u pended if a stay is not issued. But it was the Proclam ation that altered the status quo for the Plaintiffs, whose fam ily m em bers had qual i fi e d for entry under established imm igration pol icy, but are n ow inadm issible under the Proclam ation. The “ purpose of a prelim inary in

junction is m erely to p reserve the relative positions of the parties until a trial on the m erits can be held.” Univ. of Tex. v. Camenisch , 451 U.S. 390, 395 (1981). This observation has even m o r e force here, where we are considering only a stay pending appeal of a preliminary injunction. In the governm ent’s re-im agining of the status quo in this context, this factor would a l wa y s tip in the
governm ent’s f

avor, effectively rendering the Co urt powerless to exercise its discretion on this factor i n s uch instances.

Given the irreparable harm to the Pl a i n t i ffs, the lack o f irreparable harm to the United State s fo r m aintaining the
status q uo pending resolution of this appeal, and the injury to other parties if th e P r o clam atio n is imm ediately im plem ented, the public in t e rest favors preserving the status quo

. This factor falls to the Plaintiffs.D O E # 1 V

. T R U M P 37

IV

W e finally consider the scope o f the d istrict court’s prelim inary injunction. In this case, the district court determ ined that a nationwide injunction w as appro p r i a te. Based o n evidence in the record, the d istrict court concluded
that the Proclam ation would cause significant harm t o 2 1 s tates, the District of C olum bia, and New York C ity i f allowed to go int o effect there. Accordingly, the court enjoined the P roclam ati o n across the country to preserve uniform ity in imm igration policies. Doe
, 418 F. Supp. 3d at 603. Subsequently, the district co urt certified the two nationwide subclasses noted above: the United St a tes Petitioner subclass and the Visa Applicant subclass. The
governm ent has not yet sought to appeal that certification.

In the pres e n t procedural posture—a request for a stay pending th e appeal of a prelim inary injunction—a provisionally certified nationwide clas s i s sufficient justification for a n ationwide injunction. 4 See Al Otro Lado
, 952 F .3d at 1 004 n.4. Because the class here is nationwide, and b ecause a nationwide injunction is necessary to provide the class m em

b ers with com

plete relief, we conclude that the
scope of the injunction is appropriate at this junc ture, regardless of whether or not it was when originally issued.

“The scope of an injunction is ‘dependent as m u ch on the equities of a given case as the substance of the legal issues it presents,’ and courts m

us t t a ilor the scope ‘to m eet the exigencies of the p art i c u lar case.’” Azar
, 911 F.3d at 584 (quoting Trump v. Int’l Refugee Assistance Project
, 137 S. Ct.

4 Should the governm ent ultim ately p revail in reversing th e class certification, then the scope of the injunction should be revisited.D O E # 1 V

. T R U M P 38

2080, 2087 (2017)). Here, the balance of the equities tips in favor of protecting the certified class: the governm ent has not shown that it will be irreparably injured absent enforcem ent of the Proclam ation, while the Plaintiffs have shown that the imm ediate im

plem entation of the Proclam ation will affect the long-standing practice of how imm igration visas are processed and will prevent class m em b ers f ro m reu n itin g with their fam ilies. Pl ai n tiffs have raised serious concerns that class m em

bers will be ser i o u sly injured if the P roclam ation is im plem ented imm ediately, and thus the exigencies of this case indicate that an injunction protecting the certified class is “ n ot m ore burdensom e than necessary” to provide relief wh i le the m erits of this case are pending. See id. (citing Califano v. Yamasaki , 442 U.S. 682, 702 (1979)).

In addition, “there is no bar against class-wide, and nationwide relief in federal district o r circuit court when it is appropriate,” Bresgal v. Brock
, 843 F.2d 1163, 1170 (9th Cir. 1987), and here the class-wide, nationwide relief is necessary to afford the class m em bers th e r elief to which they are entitled. Many of the typ ical circum stances that counsel against the nationwide scope of an injunction are absent from this case. No litigation challenging this Proclam ation is pending elsewhere, alleviat i n g concerns occasionally associated with nationwide injunctions that such injunctions deprive other courts from offering diverse perspectives on the legal issues while sim ilar litigation is ongoing in m u ltiple forum s. See Azar
, 911 F.3d a t 5 8 3

. Moreover, the district
court here has not stayed the preparation of this case for trial pending the appeal of the n ationwide injunction, rem oving a considerati o n that “m agnifies” the concerns associated with nationwide injunctions. S ee id. The n ationwide scope of the i n junction is also based on the certified subclasses, whic h elim inates so me concern that a nationwide injunction isD O E # 1 V

. T R U M P 39

overly burdens o me. Cf. id. at 582–83 (“[I]njunctive relief generally should be lim ited to apply only to nam ed plaintiffs

were there is no class certification”) (quoting Eas y r i d ers Freedom F.I.G.H.T. v. H annigan
, 9 2 F.3d 148 6
, 1 501 (9th Cir. 1996)).

Further, “[t]he INA was designed to im plem ent a uniform federal policy,” Kahn v. INS
, 36 F.3d 1412, 1414 (9th Cir. 1 9 94), and we have underscored the need for a “com p rehensive and unified” imm igration policy, Arizona v. United States
, 567 U .S. 3 8 7, 4 0 1 ( 2 012); see also, e.g. , Regents of the Univ. of Cal. v. United States Dep ’ t o f Homeland Sec.
, 908 F.3d 476, 511 (9th Cir. 2018) (“Allowing

uneven application of nationwide imm igration policy f lies in the face o f [uniform ity] requirem ents”); Hawaii v. Trump
, 8 78 F. 3 d 662, 701 (9th Cir. 2017) (“Because this case im plicates imm igration p o l icy, a nationwide injunction was necessary to give Plaintiffs a full expression of their rights”), rev’d on other grounds , — U.S. —, 138 S. Ct. 2392 (2018). The provisions of the INA that are affected by the Proclam ation represent the curren t “national imm igration policy, and an i n

j un ction that applies that policy to som e individuals while rescinding it as to others is inim ical to the
p ri nciple of uniform ity.” Regents of the U niv. of Ca l

. , 908 F.3d at 5 12. C onsequently, a m ore lim ited injunction o f the Proclam ation would “needlessly com plicate agency and individual action in response to the United States’s changing imm igration requirem ents,” E. B ay Sanctuary Covenant
, 950 F .3d at 1284, and so the nationwid e i n jun ction of the Proclam ation is justified.

Thus, b ecause the certified class is nation wi d e in scope

a n d p r o mo t e s u n i f

o rmi t y i n a dmi n i s t e r i n g fe d e r a lD O E # 1 V

. T R U M P 40

imm igration law, the district court did not abuse its discretion in entering a nationwide injunction.

V

In sum , the governm ent has not established the requisite irreparable harm necessary to jus t i fy a stay pending appeal. Its rights m ay be vindicated upon com pl e t ion of this litigation. The alleged m onetary h arm s to third parties upon wh i ch the governm ent relies do not constitute irreparable harm

. While that sole factor is dispositive, we also conclude that the governm ent did not m eet its h igh burden to satisfy the other Nken factors. It has not d em onstrated likelihood o f

success. Staying the injunction would injure b o th the plaintiff class and third parties, and the public interest weighs against entering a stay. The pre l imi nary injunction preserves the
status quo during the pendency of this appeal. The district
court did n ot abuse its discretion in determ ining the scope o f the prelim inary injunction.

For these reasons, we deny the m otion to stay the prelim inary injunction pending appeal. W e do not prejudge the consideration of the m erits appeal.

MOTION DENIED.

BRESS, Circuit Judge, dissenting:

Today’s decis i on is yet the latest exam ple of o ur court allowing a universal injunction of a clearly constitutional Executive Branch imm igration policy. This tim e , the Pre s ident in Proclam ation No. 9945 im posed certainD O E # 1 V

. T R U M P 41

restrictions on the entry of imm igrants who, in the President’s judgm ent, will unduly b urden the Am erican healthcare system

. In wh at unfortunately has becom e standard operating
pro c e dure, the district court enjoined the Proclam ation o n a nationwide basis before it could take effect. While d eclining
to endorse the district court’s central ratio n a l e , m y fine colleagues in the m ajority find a way to justify the district court’s decision, wh i l e refusing to stay or lim it its b lanket injunction.

The m ajority gravely errs in c oncluding that the Proclamation is likely unconstitutional. There is no legal basis to im

pose novel and unjustified restrictions on what the Suprem e Court has described as “the President[’s] sweeping authority to decide whether to suspend entry, whose entry to

sus p e n d
, and for how long.” Trump v. Hawaii
, 138 S

. Ct. 2392, 2413 (20 1 8 ). The P resident issued Proclam ation No. 9945 based on hi s c o ns titutional powers and his statutory authority in 8 U.S.C. § 1182(f). The Suprem e Court has held that this provision “[b]y its te rms ” “ exudes deference to the President in ev e ry clause.” Id. at 2408. Yet the m ajority opinion g ives deference t o e v eryone but the President—the district court, whose analysis was deeply flawed; States who joined an am icus brief and who are not even parties t o this
case; and plaintiffs’ expert, Dr. Leighton Ku, who candidly adm its he perform ed “not an ideal analysis.”

It i s a b ad day f

o r the separation of powers when the Executive—operating at the apex of his constitutional

m andate—loses out to players who lack the authority that the Constitution and Congress entrusted to him. And it is an equally bad day for the rule of law when the m ajority opinion

e n d o r ses argum ents that the S uprem e Court expressly

r e j e cted two years ago in Trump v. Hawaii

. A s with m anyD O E # 1 V

. T R U M P 42

imm igration p olicies, reasonable m inds will differ as to whether Proclam ation No. 9945 is good or b a d policy. B ut the great policy debates of our tim e should be resolved in the halls o f Congress, the public square, and at the ballot box, not by a district court in Oregon or a three-judge panel in San Fr an ci s co. What I know is that Proclam ation No. 9945 i s valid as a m atter of law. And that is what m atters here.

The m ajority’s unjustified intrusion on presidential prerogative is, however, only m ade m ore problem atic by the
scope o f the injunction that the court allows. T he district court, as noted, issued a n ationwide injunction, and one that i n fa c t operates worldwide. Injunctions such as this raise

m any issues, as the Suprem e Court has signaled in repeatedly staying lower courts’ (and our court’s) universal injunctions. See Wolf v. Innova t i o n L aw Lab
, No. 19A960, 2020 W L 1161432 ( U. S. Mar. 1 1, 2 0 20); Dep’t of Homeland Sec. v. New York
, 140 S. Ct

. 59 9 (2020); Barr v. E. Bay Sanctuary Co v enant , 140 S. Ct. 3 (2019); T rump v. Int’l Refugee Assistance Project
, 138 S. Ct. 5 42 (2017); Trump v. Hawaii
, 138 S. Ct. 542 (2017).

Not h eeding these signals, the m ajority a l l ows another universal injunction to rem a i n in place, but with new and unfo rtun ate twists. When the district court enjoined Proclam ation No. 9945, it did so without certifying any class. Just recently, however, and m any m onths into this appeal o f its i n j un ction, the district court certified two classes, one o f
persons in the United St a t e s an d o ne of “foreign n ationals” around the world. Th e s equence of events here is cause for
concern, and the m ajority’s reliance on th e b e lated class certification decision confirm s that the district court’s universal injunction w as n ot justified when issued. B ut what the class certification ruling also shows is that the excessesD O E # 1 V

. T R U M P 43

o f universal injunctions stem in large part from a fail ur e t o ab i d e b y the rigorous requir e me n t s fo r c l a s s

c e r t i f i c a t i o n

— r e q u i r e m e n t s t h a t t h e d i s t r i c t c o u r t unfortunately did not observe.

If there is any solace h ere, it is that the m ajority has only denied a stay of the injunction

. I h ope the m erits panel that receives this case will see things d ifferently. B ut that decision will be issued m any m onths f rom now, if not longer. There is no reason for the Executive to have his chosen and plainly constitu t i o n a l Proclam ation put on ice in the interim —a delay tha t in flicts real dam age on our constitutional system

. F or the reasons expressed here and in

my prior dissent in this m atter, see Doe # 1 v. Trump
, 944 F.3d 1222, 1223–29 (9th Cir. 2019) (Bress, J., dissenting), I would have stayed the district court’s injunction. I therefore respectfully dissent.

I

On October 4, 2019, the P resident iss u e d Presidential Proclam ation No. 9945, Suspension of En try of Immigrants Who Will Financially Burden the United States Healthcare System, in Ord

er To Protect the Availability of Healthcare Benefits for Americans

. 84 Fed. Reg. 53991 (2019). Invoking the President’s authority under 8 U. S. C. § 1182(f)

and the Constitution, the Proclam ation restricts the entry of certain imm igrants who cannot show that, within 30 days of arriving in the Un i t ed States, they “will be covered by approved health insurance” or “ p o ss ess[] the financial

resources t o pay for reasonably foreseeable m edical costs.” Id. at 53992.D O E # 1 V

. T R U M P 44

The Proclam ation is founded on the Presid ent’s d etermin atio n th at u

n in su red im m ig rants im

pose unwarranted
costs o n the Am erican healthcare system

. The P roclam ation references “data show[ing] that lawful imm igrants are about three tim es m o re likely than United S tates citize n s t o lack health insurance,” noting the “substantial” b urden that the uninsured im

pose on healthcare p roviders and taxpayers. Id.
at 53991. T he President f ound that this burden—which takes the “form of higher taxes, higher prem ium s, and higher fees for m edical services” —h a s contributed to uncom pensated

care costs in excess of $35 bi l l i o n for each o f the last 10 years. Id. The Proclam ation also identified other burdens that the uninsured im

pose, incl u ding “reliance on publicly funded p rogram s” and overreliance on em ergency room care, wh i ch creates “delays f

or those who truly need em erge n c y services.” Id. The President concluded that “[c]ontinuing to allow entry into the United States o f certain imm igrants who lack health insurance or the dem onstrated ab i l i ty to pay for their healthcare would be detrim ental” to the n atio n a l interest. Id.

To address these problem s, th e P r o clam atio n requires visa applicants to show they “will be covered by approved health insurance

. . . within 30 days of the alien’s entry into the United States,

. . . un l e s s the alien possesses the financial

resources to pay for reasonably f oreseeab l e me d ical costs.” Id. at 5 3992. The Proclam ation defines “approved health insurance” by reference to a lengthy list of coverage options. Id. These include em

ploy e r

- sponsored and retiree plans, fam ily plans, visitor health insurance plans, unsubsidized health plans offered on State exchanges, Medicare, or “any other health plan that provides adequate coverage for m edical

care as determ ined by the S ecretary of Health and Hum an Services.” Id. Plans need not be purchased p rior to entry;D O E # 1 V

. T R U M P 45

rather, the imm igrant m

ust only show that he o r she will have the required coverage within 30 days of entry. Id.

Enforcem ent of the Proclam ation takes place all over the

wo r l d at the consular officer level. An imm igrant m u s t “establish that he or she m eets [ the Proclam ati on’s] requirem ents, to the satisfaction of a consular o f ficer, before the adjudication and is s u an ce of an imm igrant visa.” Id. at 53993. T he Proclam ation also em powers the Secretary o f State to “establish standards and pro c edures [to] govern[] such determ inations.” Id. This review is distinct from other requirem ents that the l aw otherwise im poses. A s the Proclam ation m akes clear, its review process “is separate and independ e n t from the review and determ ination required by other statute s , r egulations, or proclam ations in determ ining the adm issibility of an ali e n

. ” I d. That would include, for instance, the public charge provisions of the Imm igration and Nationality Act (INA). 8 U.S.C. § 1182(a)(4).

Im p ortantly, the Proclam ation “shall apply only to aliens seeking to enter the United States pursuant to an imm igrant visa.” 84 Fed. Reg. at 53992. The Proclam ation thus “does
not affect the entry of al i e n s e n tering the United States through m eans other than immi g r ant visas.” Id. at 53993. That includes persons seeking nonimm igrant visas o r refugees. Nothing in the Proclam ation “affect[s] any in d iv id u al’s e lig ib ility for asy lum , ref u g ee statu s , w i thh o ld in g of re mo val, or protection under the Convention Against Torture and O ther Cruel, Inhum an o r Degrading Treatm ent o r Punishm ent.” Id.

The Proclam ation contai n s various other exceptions as well. It does not apply to “any alien holding a valid imm igrant vis a issued before the effective date o f thisD O E # 1 V

. T R U M P 46

proclam ation,” or “any alien unde r th e a g e of 18, except for
any alien accom

panying a parent who is also imm igrating to the United States and subject to this procl a mat ion.” Id.
at 53992. The Proclam ation does not cover “any a l ien who is the child o f a United States citizen or who is see king to

e n t e r the United States pursuant to” specified v isas fo r children. Id. Also excepted ar e business travelers, foreign students, tem

porary agricultural workers, and various o thers. Id. On a “case-by-case b asis,” the Sec r e t ary of State m ay

exem p t from the Proclam ation “any alien whose entry would be in the national interest.” Id. at 53993.

“[W ]ithin 180 days” of the Proclam ation’s effective date and each year the r e a fter, the Secretary of State, “in consultation with the Secretary o f Health an d Hum an Services, the Secretary of Hom eland Security, and the heads of other appropriate agencies, shall subm it” a report to the President. Id. This report m ust address “the continued necessity of and any adjustm ents that m ay be warranted to the suspension and lim itation on entry” imp osed, as well as “other m easures that m ay be warranted to protect the integrity of the United St a tes healthcare system .” Id. The Proclam ation m akes clear that “[i]f the Secretary of State, in consultation with the heads of other appropriate executive departm ents and agencies, determ ines that circum stances no longer warrant the continued effectiveness of the suspension and lim itation on entry,” the President is to be “imm ediately” advised. Id.

Two days before the Proclam ation was set to take effect,
p l a i n t i f f s

— a M u l tn omah Co un ty , Or e g o n a dv o c a c y organization and several U.S. citizens with fam ily m em bers seeking v isas—obtained a tem porary restraining order blocking enfo r c em ent of the Proclam ation worldwide. OnD O E # 1 V

. T R U M P 47

Nov em ber 26, 2019, and leading with the non-delegation doctrine, the district court g ranted plaintiffs’ request fo r a universal prelim inary injunction and refused to stay its order. Doe #1 v. Trump
, 418 F. Supp. 3d 573 (D. Or. 2019). After the g o vernm ent sought a stay of the injunction pending appeal
, our court denied the governm ent tem porary

em ergency relief. Doe #1 v. Trump
, 944 F.3d 1222–2 3 (9th Cir. 2019); see also id. at 1223–29 (Bress, J., dissenting).

Four m onths after the g o v e rnm ent sought a stay in this
court and three m onths after we hear d ar g um ent o n that

m otion (and while the m otion was under subm ission), the district c o urt granted class certification. Doe #1 v. Trump
, 2020 WL 1689727 (D. Or. Apr. 7, 2020). The district court issued this class certification decision four and a h alf m onths after entering its nationwide prelim inary injunction, and over fiv e m o nth s af

ter entering the tem

porary restraining order that blocked the Proclam ation fromtaking effect anywhere.

The district court certified two classes under Federal Rule of Civil Procedure 23(b)(2), one c o v ering persons in the United States and one covering persons all over the world:

(1) U .S. Petitioner Subclass :

Individuals in the United States who currently have or will h a ve an approved or pending petition to the United States governm ent to sp onsor a noncitizen fam ily m em ber for an i m m igrant visa; and whose sponsored fam ily

m em ber is s ubject to the P roclam ation and unable to dem onstrate to a consular officer’s satisfaction that he o r she “will b e covered by
appr ov e d health insurance” within 30 daysD O E # 1 V

. T R U M P 48

after entry or will be able “t o p ay for reasonably foreseeable m edical costs”; and

(2) V isa Applicant Subclass :

Individuals who ar e foreign nationals who (i) have applied for or will soon apply to the United Sta t es governm ent for an imm igrant visa; (ii) are otherwise eligibl e t o be granted the visa; but (iii) are subject to the Proclam ation and unable t o d em o nstrate to the satisfaction of a c on s ular officer that they “will be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably forese e able

m edical costs.”

Id. at *17. The governm ent’s tim e to seek leave to appeal the district court’s class certification decision has not yet expired. Fed. R. Civ. P. 23 ( f) (45-day d eadline “if any party is the United States, a Unite d St ates agency, or a United States officer o r em

ployee sued for an act or om ission occurring in connection with duties perform ed o n the Un i t ed States’ behalf”).

Today, our court now denies the governm ent’s request for

a stay pending appeal, allowing the universal injunction to

rem ain in place. The court’s decision is quite wrong, and so I respectfully dissent.

II

The following canonical factors control the governm ent’s request for a stay pending appeal:D O E # 1 V

. T R U M P 49

(1) whether the stay applicant has m ade a strong showing that he is likely to succeed on the m erits; (2) whether the ap p licant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially inj ur e the other parties interested in the proceeding; and (4) where the public interest lies.

City & Cty. of S.F. v. USCIS
, 944 F.3d 773, 789 (9th Ci r. 2019) (quoting Nken v. Holder
, 556 U.S. 418, 433–34 (2009)).

Th e m ajority opinion begins with the governm ent’ s irreparable h arm and only lat er turns to its likelihood o f

success on the m erits, the supposedly “second m ost im p ortant Nken factor.” Maj. Op. 22. I have elsewhere explained h ow

a tactical dev i a t i o n from the norm al sequence of the stay factors “waters d o wn the m erits analysis.” See Al Otro Lado

v. Wolf
, 952 F.3d 999, 1022 ( 9 th Cir. 2020) (Bress, J., dissenting). That is the case h ere, where the governm ent’s asserted h arm s follow from its strong likelihood of success on the m erits. See id. (“The sequencing o f today’s opinion can only reflect the m ajority’s im plicit acknowledgem ent that the
governm ent’s case is strongest where it m o st m atters, nam ely, the likelihood of succe s s o n the m erits.”). Inversion of the stay factors is a recent trend and one that produces distortion in the stay analysis.

I thus begin, as we usually do, with the m erits.D O E # 1 V

. T R U M P 50

III

A

The m ajority concludes th at the President has likely exceeded his powers on the theory that Proclam ation No. 9945 conflicts with statutes th at s upposedly forbid it, while failing to fall wi thin 8 U.S.C. § 1 182(f). This is seriously

m istaken.

Under Trump v. Hawaii
, the g o ve rn m ent has m ade a strong showing that Proclam ation No. 9945 is a lawful exercise of the President’s vast constitutional and statutory powers in this space. I address § 1182(f) first because, in

com bination with his innate powers under the Constitution, § 1182(f) cr e ates the h igh-water m ark for the President’s ability to place lim its o n wh o enters this country. Under § 1182(f) and the P resident’s inherent powers, P roclam ation No. 9945 is plainly valid.

Section 1182(f) provides:

Whenever the President finds that the entry o f
any aliens or of any class of aliens into the United States would be de tr i m ental to the interests of the United States, he m ay by proclam ation, and for such period as he shall dee m n ecessary, suspend the entry of all aliens o r any class of aliens as imm igrants o r nonimm igrants, o r im

pos e on the entry o f aliens any r e s trictions he m ay deem to be appropriate.D O E # 1 V

. T R U M P 51

8 U.S.C. § 1182(f). Just two years ago, the Suprem e Court in Trump v. H

awaii held that § 1 182(f) “exudes deference to the President in every clause” and “grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” 138 S. Ct. at 2408, 2413. Based

on this “broad discretion to suspend the entry of aliens into the United States,” the Suprem e Court upheld against constitutional and statutory challenges a presi dential proclam ation suspending entry of perso n s from specified countries. Id. at 2408.

The “sweeping authority” that justified the proclam ation in Trump v. Hawaii clearly allows the President to do what he did h ere in Proclam ation No. 9945. As the Supr e m e Co urt has held, the “sole prerequisite set forth in § 1 182(f) is that the President ‘find[]’ that the entry of th e covered aliens ‘would be detrim ental to the interests of the United States.’” Id. at 2408 (quoting 8 U .S.C. § 1182(f)). The President m ade that finding in Proclam ation No

. 9945. 84 Fed. Reg. at 53991. In Trump v. Hawaii , m o reover, the plaintiffs argued that the proclam ation there conflicted with provisions of the INA, which the plaintiffs believed “already specified” Congress’s approach to the issue. Id. at 241 1

. Bu t the Suprem e Court expressly rej ected this theory because “[f]airly read,” § 1182(f) “vests authority in the President to im pose additional lim itations on entry beyond the grounds for exclusion set fo rth in the INA.” Id. at 2412. P roclam ation No. 9945 is another such “additional lim itation[] on entry.” Id. It is therefore plainly valid under § 1182(f), as interpreted by the Suprem e Court.

Again st all of this, the m ajority offers two bases for distinguishing Trump v. Hawaii and for concluding th at the President has likely exceeded his powers under § 1 1 8 2 ( f).D O E # 1 V

. T R U M P 52

But Trump v. Hawaii consi de re d and squarely rejected the
very argum ents that the m ajority credits.

First
, the m ajority concludes that “the Procl a mation’s failure to explicitly or im plicitly establish any tim e

c onstraints on the healthcare prohibition raises seriou s questions as to whether the Proclam ation is a ‘s uspension’

a c c o rding to the plain m eaning o f the term in § 1182( f) .” Maj. Op. 31–32. The S uprem e Court considered and rejected this sam e argum ent in Trump v. Hawaii

. While the m ajority opinion com

p lains that Proclam ation No

. 9945 “does not have an endpoint,” Maj. O p. 29, Trump v. Hawaii rejected the plaintiffs’ argum ent that a § 1182(f) “suspension” “m ean[t] that the President is required to prescribe in advance a fixed end d ate for the entry rest r i ctions.” 138 S. Ct. at 2410. Citing past p roclam ations, Trump v. Hawaii concluded it was sufficient th at the proclam ation “m akes clear that its ‘conditional restrictions’ will rem ain in force only so long as necessary to ‘address’ the identified ‘inadequacies and risks’ within the covered nations.” Id

. In particular, the Suprem e Court n oted that the pr o c lam ation “establishes an ongoing
process to engage covered nations and assess every 180 days wheth er the entry restrictions should be m odified o r term inated.” Id.

The m ajority here claim s that Proclam ation No. 9 945 is different because it supposedly “om its any indication that the health insurance requirem ent is tem p or ary.” Maj. Op. 29. Indeed, the m ajority claim s the Proclam ation lacks “even an im plicit” tim e lim itation, “such as a lim it m easured by the

o ccurrence of som e future event or condition.” Id. at 2 9

. That is an uncomm only unfair reading of the Proclam ation. An e n ti r e section of Proclam ation No. 9945 provides for ongoing review of its “susp e n s i on” on entry. TheD O E # 1 V

. T R U M P 53

Proclam ation r e qu i r es that a report be subm itted to the President on “the continued n ecessity o f and any adjustm ents that m ay be warranted to the suspension and l i mi tation on entry.” 84 Fed. Reg. at 5 3993 (em phasis added). The fi r s t report m ust be subm itted to the President within 180 days o f the Proclam ation’s effective date, and “annually thereafter.” Id. If “circum stances no longer warrant the continued effectiveness of the su sp ension or lim itation on entry,” the President m

ust “ immediately ” be advise d

. Id. (em phases add e d )

. The review process here is n ot m aterially different fro m the o ne at issue in T rump v. Hawaii

. The m ajority opinion blinks reality in suggesting otherwise.

Instead, the m ajority c l a im s the Proclam ation is not a tem porary lim itation on entry because while agency officials

can advise the President that the suspension is no longer warranted, “[t]here is no requirem ent that the President act on the advice.” Maj. Op. 29. Th a t is a rather rem arkable
statem ent. When exercising his vast powers under § 1182(f) and Article II o f the Const itution, n othing requires the President to b ind him self to the m ast and pre-comm it to the

recomm endations of inferior officia ls. And like the Proclam ation here, the proclam ation in T rump v. Hawaii also did not require the P resident uncritically to accept the advice of his subordinates. See Pres. Procl. N o. 99645, 82 Fed. R eg. 4 5 1 6 1
, 4 1 1 6 9

– 7 0 ( 2 0 1 7 ) ( d e s c r i b i n g i n t e r

- a g e n c y

“ recommendations to the President” and stating “the Secretary of Hom eland S ecurity m ay recommend to the President the rem oval o r m odification of any or all such restrictions and lim itations”) (em p h ases a d ded). The

m ajority’s insistence that the fatal flaw in the Proclam ation is the President’s unwillingness to agree in advance to advice he has not yet received reflects an untenable theory of Executive power with no basis in principle or com m on sense.D O E # 1 V

. T R U M P 54

Even m ore unsettling is the m ajority’s determ ination that Proclam ation No. 9945 is not a tem porary “suspension” because of its “likely ineffectiveness.” Maj. Op. 31

. The

m ajority asserts that “the likely ineffectiveness of the health insur ance requirem ent suggests that uncom pensated care costs w ill rem ain high,” so that “the perceived ‘necessity’ o f the Proclam ation could therefore continue in perpetuity.” Id. In other words, the m ajority concludes that because the Proclam ation will n o t successfully “reduce uncom pensated healthcare costs,” those costs w ill rem ain high, m eaning that the Proclam ation will continue in effect forever. Id. at 30.

Th e m ajority’s conclusion about th e “ l i k e l y ineffect i ve n ess” of the Proclam ation turns on plaintiffs’ expert’s self-describ e d “ n o t

. . . ideal analysis.” I will have

m ore to say o n th at later. What m atters here is that the

m ajority’s reasoning again defies Trump v. Hawaii

. The plaintiffs there s i milarly m aintained that a proclam ation would not adequately r es olve “the President’s stated concern.” 138 S. Ct. at 2409. In rejecting this view, the Suprem e C ourt could not have been clearer that “a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the b road statutory text [of § 1182(f)] and the defe r ence traditionally accorded the Preside n t in this sphere.” Id. Indeed, the Suprem e Court
went on, “‘[w]hether the Pres i d e nt’s chosen m ethod’ o f addressing perceived risks is justified from a policy
p er sp ective is ‘ irrelevant to the scope of his [§ 1182(f)] authority.’” Id. (quoting Sale v. Haitian Ctrs. Council, Inc.
, 509 U.S. 155, 187–88 (1993)) (em phasis added).

The Suprem e Court in Trump v. H awaii in no uncertain
term s rebuffed the plaintiffs’ effort to “challenge the entry suspension based on their perception of its effectiveness.” Id.D O E # 1 V

. T R U M P 55

at 2 421. The m ajority’s arm chair conclusion about the “likely ineffectiveness” of Proclam ation No. 9945 is thus precisely what the S uprem e Court told u s n o t t o do. The Suprem e Court reiterated in Trump v. Hawaii that “we cannot substitute our own assessm ent f or the Executive’s predictive judgm ents.” Id. Yet the m ajority opinion do e s j u s t that. Today’s decision is therefore a serio u s a ffront to the core separation of powers principles that Tr u mp v. H awaii reaffirm s and reinforces.

The m ajority’s s u g g estion that the outcom e m ight have been different if the P resident had engaged i n a mo re “datadriven analysis,” Maj. Op. 30, reflects an equally serious

m isunder s t anding of our role. Since when does this court know health policy better th an the President of the United Sta t e s and the other Executive Branch officials whom the Proclam ation requires to be involved—the Secretary of State, the Secretary of Health and Hum an Services, the Secretary o f Hom eland Security, and “the heads o f other appropriate
age ncies”? 84 Fed. Reg. at 53993. T he m ajority’s conclusion that Proclam ation No. 9945 is not a tim e-lim ited “suspension” on entry is nothing m ore than a policy disagreem ent with the Executive o n a m atter constitutionally and statutorily com m itted to his authority.

Second
, the m ajority concludes that Proclam ation No. 9945 likely exceeds the President’s § 1182(f) powers because the Proc l a mat ion “deals with a purely dom estic econom ic problem : uncom

pensated h ealthcare costs in the United States.” Maj. Op. 32. O nce ag a i n , the m ajority opinion disregards Suprem e Court precedent, mischaracterizes the Proclam ation, and im

properly treads on the President’s constitutional and statutory powers. Indeed, no court has everD O E # 1 V

. T R U M P 56

adopted the foreign/dom estic d istinction that the m ajor ity tries to engraft onto § 1182(f).

Proclam ation No. 9945 places restrictions on the entry o f imm ig ra n t s i nto this country. For over a century, the Suprem e Court has been clear that “[t]he exclusion of aliens is a fundam ental act of soverei g nty” that “is inherent in the executive power to control the foreign affairs of the nation.” United States ex rel. Knauff v. Shaughn es sy , 338 U .S. 537, 542 (1950); see also
, e.g. , Hawaii
, 138 S. Ct. at 2418; INS v. Aguirre-Aguirre
, 5 2 6 U.S. 415, 425 (1999) (“[W ]e have recognized that judicial d eference to the Executive Branch is especially appropriate i n the imm igration context where officials exercise especially sensitive political functions that im plicate q uestions of foreign relations.”) (quotations

om itted); Ha r isiades v. Shaughnessy
, 342 U.S. 580, 588–89 (1952) (“[A]ny policy toward aliens is vitally and intricately interwoven with c o n t em

poraneous policies in regard to the

c o n du c t of foreign relations

. . . . ”). The m ajority’s notion
th a t the exclusion of persons from this country can b e recharacterized as “a purely dom estic econom ic issue,” Maj. Op. 33, thus contradicts settled Suprem e Court case law.

Given the source of authority that the President invoked, it is therefore unsurprising that Proclam ation No. 9945 on its face has an obvious international valence. If it ever g oes into effect, the Proclam ation will be im plem ented by consular

o ffi cials abroad, who m

ust interview aliens seeking visas. 84 Fed. Reg. at 53993; Notice of Info. Collection Under OMB E m ergency Review: Immigrant Health Ins. C o vera ge , 8 4 F ed

. Reg. 58199 (2019). The Proclam ation allows th e Secretary of State to “establish standards and procedu r e s governing such determ inations.” 84 Fed. Reg. 53993. It en ab les the Secretary o f S tate to exem pt aliens from the Pr oc lam ation.D O E # 1 V

. T R U M P 57

Id. And it entrusts the Secretary of State with l e ad responsibility for preparing regular reports to the President. Id. The idea that the Proclam ation concerns m atters “purely dom estic,” Maj. Op. 33, is clearly belied by th e t ext and intended operation of the Proclam ation itself.

There are also obvious reasons why no court has forced

a foreign/dom estic distinction o n § 1182(f). The tex t of § 1182(f) allows the P resident to suspend the entry of aliens who “would be detrim ent a l to the interests of the United States”—without defining what those interests m ay b e and without distingu ishing between f oreign and dom estic interests. Many (if not m o st) imm igration policies naturally im plicate dom estic interests as well as foreign ones. This is
to b e expecte d fo r a provision that governs entry of persons

“ i n to the United States.” 8 U.S.C. § 1182(f) (em phas i s added); see also, e.g. , Pres. Procl. No

. 4865, 46 Fed. R eg. 4 8 1 0 7 (1 9 8 1 ) (suspending entry to p r eserv e “law e n f o rcem ent

resourc e s ” and prom ote the “welfare and safety o f

comm unities” in the southeastern United States).

I n fact, m any of the INA’s express ground s fo r inadm issibility could be said to involve “dom estic” concerns,

or even “purely dom estic” on es

. See, e.g. , 8 U.S.C. § 1182(a)(1)(A)(i) (aliens with comm unicable di s e a ses); id. § 1182(a)(1)(A)(ii) (aliens who h ave n ot been vaccinated); id. § 1182(a)(2)(A) (aliens with a crim inal h istory); id. § 1182(a)(4) (aliens who are likely to becom e public charges); id. § 1182(a)(5) (aliens who would disrupt dom estic labor m arkets or wages). Since § 1 182(f) “vests authority in the President to im

pose additional lim itations on entry beyond the grounds for exclusion set forth in th e INA,” Hawaii
, 138 S. Ct. at 2412, it would be bizarre if § 1182(f)D O E # 1 V

. T R U M P 58

reflected a f

oreign/dom estic lim itation that appears nowhere in the text or structure of the INA as a whole.

This m anufactured distinction is also incon sistent with everything the Suprem e Court has told us about § 1 182(f). That provision “exudes deference to the Presi dent in every clause” and “grant s the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” Hawaii
, 138 S

. Ct. at 2408, 2413. The

m ajority’s unpreced e n ted effort to recast § 1182(f) wrongly deprives the Presiden t of authority that is rightfully his and will l e ad to endless problem s of adm inistration as courts debate whether a given imm igration policy is really m ore foreign or dom estic in nature

. Th i s is not the § 1182(f) that Congress enacted or that the Suprem e Court c o n s trued in Trump v. Hawaii

.

B

If Proclam ation No. 9945 is a valid exercise of § 1182(f), what is the problem ? T he district court’s prim ary answer was that § 1 1 8 2(f) was itself an unconstitutional delegation o f legislative p ower to the President. In the district c o urt’s view, “[t]here is no ‘intelligible principl e ’ p rovided as to what it m eans to be ‘detrim ental,’ what the ‘interests’ of the United States are, what degree of finding is required, o r what deg r e e o f detrim ent is required.” Doe # 1
, 418 F. Supp. 3d
at 590. The m ajority opinion t e llingly declines to endorse this rationale. Maj. Op. 3 4 its description o f the d istrict court’s non-delegation an a lysis as “thoughtful” and “forceful,” id.
, fails to acknowledge—and if anything,

com plim ents—the district court’s rem arkable departure from settled law.D O E # 1 V

. T R U M P 59

I addressed the non-delegation issue at som e length in my prior dissent at the adm inistrative stay stage. See Doe #1
, 944 F.3d at 1226–27 (Bress, J., dissenting). But in brief: the district court’s non-delegation holding is clearly incorrect. On ju s t two occasions in our country’s history h as the Suprem e Court struck down a congressional statute under the non-delegation doctrine. See Gundy v. United States
, 139 S. Ct. 2116, 2129 (2019). Section 1182(f) does n ot p resent just the third occasion for doing so. That statute “has for decades been the noted source of statutory authority for presidential proclam ations involving imm igration m a t ters.” Doe #1
, 944 F.3d at 1226–27 (Bress, J., dissenting). It does not suffer from a m ortal constitutional defect hiding in plain sight.

Far from lacking an intelligible principle, the Suprem e Court in Trump v. Ha wa ii h eld that “the language o f § 1182(f) is clear” and th at § 1182(f) is a “com p rehensive delegation” o f authority to the President. 138 S. Ct. at 2408, 2410; see also id. at 2408 (“clea r statutory language”); id.
at 2410 (“clear text”). Section 1182(f), the Suprem e Court has told us, reflects “textual lim its.” Id. at 2409. T h is is not

a quarry from which a non-delegation challenge can be

m ined.

Indeed, the President’s power in this area does not derive solely from Congress, b e c au s e “[t]he exclusion of aliens” is “inherent in the executive power to control the foreign affairs of the n ation.” Knauff

, 338 U .S. at 542; see also Hawaii
, 138 S. Ct. at 2424 (Thom as, J., concurring ) (“Section 1182(f) does not set forth any judicially enforc e able lim its that constrain the President. Nor could it, since the President has inherent authority to exclude aliens from th e country.”) (em phasis in original and citation o m itted). That is why “the
str ic t lim itation upon congressional d elegations of power toD O E # 1 V

. T R U M P 60

the President over internal affairs does not apply with respect to delegations of power in external affai r s .” Youngstown Sheet & Tube Co. v. Sawyer
, 343 U.S. 579, 636 n.2 (1952) (Jackson, J., concurring); see also Gundy
, 139 S. Ct. at 2137 (Gorsuch, J., dissenting) (“[W ]hen a congressional statute confers wide discretion to the executive, n o s e paration-ofpowers problem m ay arise if the discretion is to be exercised

over m atters already within the s c ope of executive power.”) (quotations om itted). This was, in fact, the Suprem e Court’s
exact explanation when it rejected a non-delegatio n ch allenge to a precursor to § 1182(f). See Knauff , 338 U.S. at 542.

Just last Term
, the Suprem e Court reitera t ed that it has “alm ost never fel t qu alified to second-guess Congress regarding the perm issible degree of p olicy judgm ent that can be l eft to those executing or applying the law.” Gundy
, 139 S. Ct. at 2129 (quo ta t i ons om itted). Engaging in such second-guessing in the context of a longstanding statute in the

area of foreign affairs, as the district court d id, would fundam entally reorder o ur constitutional system

. I wish the

m ajority h ad sa id this instead of im plying that the district court’s ruling warranted further consideration in this court.

C

The m ajority opinion instead h o l ds that the governm ent has not m ade a strong showing o f success because Proclam ation No. 9945 supposedly “conflicts” with: (1) the Violence Against W om en Act’s (VAWA) am endm ents to the I NA, 8 U.S.C. § 1182(a)(4)(E); (2) the Affordable Care Ac t (ACA), 4 2 U.S.C. § 10821, et seq. ; and (3) the INA’s public charge provision, 8 U.S.C. § 1182(a)(4)(B)( i ). Maj. Op. 22–28. I list these grounds in the order the m ajority presents them

.D O E # 1 V

. T R U M P 61

The district court, however, devoted o nly a few sentences to VAWA. See Doe # 1
, 4 18 F. Supp. 3d at 597. The district
court did n ot rely at all on any perceived conflict with the ACA. See id. at 597 n.6 (“The Court expresses no opinion at this stage of the litigation about whether the P roclam ation also contravenes or overrides various healthcare law s. ”). An d while the district court did rely on a claim ed conflict with the public charge pro v isio n , alleg ed ly ren d erin g th e P ro clam ation “unconstitutional under separation of powers,” id. at 593, this was secondary to its central non-delegation theory.

It therefore is apparent that the ma j o r i ty justifies the district court’s injunction o n quite different legal bases than the district court itself. But any uneasiness with the district court’s rationales should h a v e l ed to the injunction being stayed, not reliance on n e w rationales w ith yet m ore legal deficiencies. Regardless, the m ajority’s central theory that Congress in v arious enactm ents foreclosed Proclam ation No. 9945, rendering it unconstitutional, is plainly wrong.

1

I begin w ith the INA’s public charge provisions, because

on this point the m ajority once again f louts T rump v. Hawaii

. The INA renders inadm issible any alien who “is likely at any tim e to becom e a public charge.” 8 U.S.C. § 1182(a)(4)(A). Consular officers m ake this determ i n a t io n using a series o f

non- e xhaustive “m inimum ” factors: age; health; f am ily status; a s se ts, resources, and financial status; and education and skills. Id. § 1182(a)(4)(B)(i)(I)–(V). The m ajority tells

us that Pro c l a mation No. 9945 “eviscerates th[is] statutory schem e b y m aking the acquisition of designated fo rms of health insurance the sole consideration o f wh ether anD O E # 1 V

. T R U M P 62

applicant should be excluded from consideration for a f am ily visa.” Maj. Op. 27.

The m ajority ’ s “evisceration” theory is wrong. And Trump v. Hawaii

—which the m ajority does n ot m ention in this portion of its o pinion—tells us why. Nothing in Pr oclam ation No. 9945 “eviscerates” the public char g e provision, for the o bvious reas o n th a t these are sim p ly two different grounds fo r inadm issibility. One can m eet the public charge provi sions but not the Proclam ation, and vice

versa. See 8 4 Fed. Reg. at 53993 (explaining that the review the Proclam ation requires “is separate and independent from the review and d eterm ination required by o th e r statutes,

r e g u l a t i o n s , o r p r o c l a m a t i o n s i n d e t e r m i n i n g t h e inadm issibility of an alien”).

In fact, th e Sup r em e Court in Trump v. Hawaii rejected the very type of argu me n t the m ajority adopts. There, the plaintiffs argued that a proclam at i o n nullified parts of the INA because Congress in that statute had already addressed “the problem o f a liens seeking entry f rom countries that do
not s h are sufficient inform ation.” 1 38 S

. Ct. at 2411. The Suprem e Court held there was no such conflict with the INA because § 1182(f) “vests authority in the President to im pose additional lim i tations on entry beyond the grounds for exclusion set forth in the INA.” Id. at 24 1 2 (e m p h ases added); see also id. at 2408 (“It is therefore unsurprising that

we have pre v i ou sly observed that § 1182(f) v ests the President with ‘am

ple power’ to im

pose entry restrictions in addition to those elsewhere enum erated in the INA.”) (quoting Sale , 508 U.S. at 187).

There is nothing unusual about Proclam ation No. 9945 creating an independent—and yes, dispositive—ground forD O E # 1 V

. T R U M P 63

inadm issibilit y , wh e n that is the whole point of § 1182(f). What the m ajority treat s as a “violat[ion] of the INA,” Maj. Op. 26, is just § 1182(f) of the INA in operation, as Trump v. Hawaii m akes plain. The m ajority today sim pl y r esurrects the sam e “cramp ed” reading of § 1182(f) that T rump v. Hawaii rejected. 138 S. Ct. at 2412. 1

Im p licit in the m ajority’s reasoning is the view that each public charge factor m

ust be given som e w eight, so that if any

one consideration i s dispositive, it unravels the statutory schem e. This interpretation h as no basis in the statute. The INA does not assign the public char g e factors any weight

am ong them selves or in relation t o independent eligibility requirem ents. And as we recently explained, the public charge “factors are not exhaustive,” and the Executive “m ay add to them .” City & Cty. of S.F.
, 944 F .3d at 798. “Other factors m ay be considered as well, giving offi c i als considerable discretion in their decisions.” Id. at 792; s e e also id. at 796 (“[D]ifferent factors have been weighted m ore or less heavily at different tim es.”).

1 Unsu rp risingly, prior proclam ations h ave addressed grounds o f inadm is si bility that the INA already provided for to som e extent. Compare 8 U.S.C. § 1182(a)(2)(h) (rendering i n a dm issible “[a]ny alien who comm its o r conspires t o comm it hum an trafficking offenses”), with Pres. Procl. No. 8342, 74 Fed. Reg. 4093 (2009) (barring entry of certain
governm ent officials who have “im p eded” or “failed t o im plem e nt” antitrafficking efforts); compare also 8 U.S.C. § 1182(a)(3)(E) ( rendering inadm issible Nazi-affiliated aliens who “ordered, i n cited, assisted, o r otherwise participated in the persecution o f a n y person because of race, religion, national origin, or political o pinion”), with Pres. Procl. No. 8697, 7 6 Fe d

. Re g. 49277 (2011) (barring entry of any alien who “ordered, assisted, aided and abetted, comm itted or othe rw i s e participated in

. . . widespread or system atic violence” based on protected characteristics).D O E # 1 V

. T R U M P 64

The m ajority com

plains that the public charge st atute “lists various factors that the consular o ffice can consider” and “[h]ealth insurance is not am ong them

. ” M aj. Op. 26. But a g ain, that is the expected result of a statutory schem e that allows the President to im pose “additional lim itations on entry.” Hawaii
, 138 S. Ct. at 2412. The m ajority’s quarrel is thus really with § 1182(f) itself, not any actual d istortion o f the INA. There is no conflict between a public c h ar ge provision that is “flexible” and “am biguous,” City & Cty. of S .F.
, 9 4 4 F.3d at 7 98, and a Proclam ation prem ised on the

“ c l ear” and “com

prehensive delegation” that Congress conferred o n the President in § 1182(f), H awaii
, 138 S. Ct. at 2408–09.

2

Unlike the district court, the m ajority’s lead point is that Proclam ation No. 9945 “conflicts with the V iolence Against W om en Act’s (‘VAWA’) ame n dm ents to the INA.” Maj. Op. 22. These am endm ents provide that th e I NA’s public charge provisio n s “ shall n ot apply” to an alien who is the victimof certain crim es. 8 U.S.C. § 1182(a)(4)(E); see also id. § 1154(a)(1)(A)(iii)–(vi). Once again, the m ajor i ty fails in its effort to save the district court’s injunction.

As an initial m atter, no plaintiff in this case claim s that their relatives are subject to the VAWA exem ption. VAWA is thus irre l e van t to this litigation and plaintiffs would lack standing to invoke it. E.g.
, Easter v. Am. W. Fin.
, 381 F.3d 9 48
, 9 62 (9th Cir. 2004); Halet v. Wend Inv. C o. , 672 F. 2 d 1305, 1309 n.2 (9th Cir. 1982). But in any e vent, the Proclam ation does not conflict with VAWA f o r the obvious

reason that a petitioner who m eets VAWA’s eligibility requirem ents is not thereby entitled to adm issi o n i n to theD O E # 1 V

. T R U M P 65

United States. Rather, that person is m erely exempted from the public charge lim itations. 8 U.S.C. § 1182(a)(4)(E). Nothing in VAWA or the INA requir e s th e President to im pose a VAWA-like carve-out on othe r g rounds for inadmi s s ib i lity, and nothing in the INA im poses such a restriction on the President’s broad authority under § 1182(f).

The m ajority thus b adly errs in concluding that the Proclam ation “contravenes the w ell-settled principle that the President’s powers are executive, not legislative i n n ature,” because the President cannot “repeal statutes.” Maj. Op. 23 (quotations om itted). Su c h conclusory statem ents o f constitutional law have nothing to do with what the P resident has done here. VAWA is a lim ited exception to one ground for inadm issibility, n ot an overarchi n g lim it on the President’s expansive authority under § 1182(f) or his independent constitutional powers in this area. 2

3

The m ajority a ls o h olds that “[t]he governm ent has not sub mi t t e d any evidence” of likely success on the plaintiffs’

2 I also find unfortunate the m ajority’s attem pt to boost i ts holding b y asserting that the governm ent “ has m ade no showing at all” on VAW A and “does not respond to the m erits of t his challenge.” Maj. Op. 22, 23. The district court, as noted, d evoted only a few scant sentences to VAW A. Even so, the g overnm ent expressly argued in this court that the Proclam ati o n did not conflict with VAW A because Trump v. Hawaii “rejected th i s argum ent, holding that ‘ § 1182(f) vests the President with ‘am ple power’ to im

pose entry restrictions in addition to those elsewhere

enum erated in the INA. ’” R eply Br. 5 (quoting 138 S. Ct. at 2408) (em phasis o m itted). Moreover, VAW A is part of the publ i c charge provision and the governm ent has argued at length why the Proclam ation does not conflict with that provision as a whole.D O E # 1 V

. T R U M P 66

assertion that “th e P ro clam atio n v io lates th e” A f f o rd a b le Care Act (ACA)

. M a

j. Op. 24. That is rather harsh, considering that the district court did not reach this issue. Doe #1
, 418 F. Supp. 3d at 597 n.6. T he plaintiffs devoted less than a page of their stay opposition to the ACA, and the g overnm ent then addressed the issue in its reply brief. A ll the sam e, the notion that the Proclam ation conflicts with the ACA is m anifestly incorrect.

The A CA authorized the creation of State-based heal th insurance m arkets, called “ex ch anges,” “where people can shop for insurance, usually online.” King v. B urwell
, 135 S. Ct. 2480, 2487 (2015) ( citing 42 U.S.C. § 18031(b)(1)). Under the ACA, “individua ls with household incom es between 100 percent and 400 p er c e nt of the federal poverty line” m ay purchase subsidized insurance plans w ith the help of “refundable tax credits.” Id. These tax credits are available to “lawfully present” aliens whose incom es are less than 100 percent of the poverty line and who are also ineligible f

or Medicaid. 26 U.S.C. § 36B(c)(1)(B). Neither subsidized insurance nor Medicaid satisfy the Proclam ation’s requirem ents. Under the ACA, consum ers can also purchase unsubsidized insurance on S tate exchanges. 42 U.S.C. §§ 18031(d)(2)(A), 10832(b). Such unsubsidized p lan s do satisfy Proclam ation No. 9945. See 8 4 Fed. Reg. at 53392. In all cases, however
, an imm igrant m ust be “lawfully present” and a resident of a State before he can purchase a ny health insur an c e from that State’s exchange, whether subsidized or not. 26 U.S.C. § 36B(c)(1)(B); 42 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F.R. 155.305(a)(1), (3).

The m ajo r i ty claim s that because the P roclam ation excludes subsidiz ed plans under State exchanges, “an immi g r ant attem

pting to legally enter the United States willD O E # 1 V

. T R U M P 67

not have access to ACA tax credits as Co n g r e s s intended.” Maj. Op. 25. That is a non sequitur. As the m ajority acknowledges, under the ACA, subsidized plans are only available to individuals “lawfully pre sent” in the United States. 26 U.S.C. § 36B(c)(1)( B) ; 42 U.S.C. § 18032(f)(1)(A)(ii). T h e ACA thus does not cover persons who are subject to the Proclam ation, who are n ot la w fully present here. Nor does the Proclam ation prevent individuals,

once they are “lawfully present,” from seeking subsidiz e d insurance under State exchanges. And the ACA says nothing about who m ay or m ay n ot enter this country. That Congress has c reated a benefit for individuals who have “lawfully” entered the United States does no t the n give persons a right to enter the country to obtain those benefits.

The apparent suggestion in the m ajority opinion is that the Proclam ation will prevent the entry of all persons who could then later take advan ta g e of the subsidized plans that the ACA m akes available to imm igrants who are “la wfu ll y present.” B ut as d iscussed ab o v e, the Proclam ation only

covers a subs e t of imm igrants. T here are m any other imm igrants, including persons already lawfully present in the United S tates, who can try to take advantage of subsidized insurance o ptions. And that is to say nothing of the persons who ar e s ubject to the Proclam ation, who can m eet its eligibility requirem ents, and who can then pursue subsidized health insurance once they arrive. The suggestion that the Proclam a t i o n som ehow d rains an aspect of the ACA of all function is thus obviously not true.

The ma j o r i ty next claim s that although imm igrants can satisfy the Proclam ation by purchasing unsubsidized insurance o n State exchanges, because imm igrants mu s t be “lawfully p resent” in the United States to buy such insurance,D O E # 1 V

. T R U M P 68

th e se imm igrants are placed in “a Catch-22.” Maj. Op. 2 5

. By the m ajority’s reasoning, such persons “cannot obtain an ‘approved’ unsubsidized insurance p lan unless they have been legally adm itted, b ut they cannot be legally a dm itted unless they have obtained an ‘approved’ insurance plan.” Id. This theory collapses because the latter part i s not true. Under the Proclam ation, the imm igrant m ust only show that he “ will be covered by approved health insurance

. . . within 30 days o f the alien’s entry into the United States.” 84 Fed. Reg. 53992 (em

p h asis added). The m ajority’s “Catch-22” thus relies entirely on a m isreading of the Proclam ation.

IV

The governm ent h as not only m ade an o v e rwhelm ing showing of likely success on the m erits, it has also shown that it will be irreparably harm ed absent a s tay of the district court’s injunction. Nken
, 556 U.S. at 433–34. The m ajority’s determ ination othe rwise depends on it placing plaintiffs’ expert and an am icu s b r i ef o n higher footing than the President of the United States.

A

The harm that the court’s injunction inflicts is irreparable and rea l —t o the interests the Executive seeks to prom ote through the Proclam ation and to the core separation o f
powers principles that m ake the Proc l am ation lawful. The injunction is a severe affront to the P resident’s auth ority, itself an irreparable injury. See Maryland v. K ing
, 133 S. Ct. 1, 3 (2012) (Roberts, C .J., in cham bers) (“[A]ny tim e a State is enjoined by a court fr o m effectuating statutes enacted by representatives of its peopl e, it suffers a form of irreparable injury.”) (quotations om itted).D O E # 1 V

. T R U M P 69

The m ajority downplays the governm ent’s institutional injury o n the theory that the Proclam ation’s lawfulness “is at the core of this dispute, to b e resolved at the m erits stage.” Maj. Op. 1 6. But by this logic, a court o f appeals could never stay a d istrict court’s injunction until the m erits were finally adjudicated, which is n ot the law. The m er i t s o f a case o f

course are at issue at the “m er i t s stage.” But the m erits are

r e l evant now too, because we are required to evaluate th e likelihood of success o n th e me r its at the stay stage. See Nken
, 556 U.S. at 434. In this case, th e “ c l ear statutory language” of § 1182(f) reflects a “com prehensive delegation” of “sweeping authority” to the Executive, Hawaii
, 138 S. Ct.
at 2408, 2413, who Congress entrusted with the im p ortant

m ission of suspending the entry o f a liens who “would be detrim ental to the interests of the Unite d St a tes.” 8 U.S.C. § 1182(f). The court’s deprivation of this fundam ental power is an acute institutional injury that is not m ade m o re palatable by telling the govern m e nt it m ust wait m any m onths, if not

mu c h longer, for a final d ecision o n the m erits. See Maryland
, 133 S. Ct. at 3.

The m ajority discounts the governm ent’s institutional injury on the theory that if such injury were credited, “no act” of the President could be enjoined because “the irrep arable harm standard [would be] satisfied by the fact o f executive action alone.” Maj. O p

. 16. That is a m ischaracterization. The m ajority can m ake this suggestion only because it took the s t ay fa ctors out of order and addressed the harm s before the m erits. Where, as he r e , the governm ent h as shown an overwhelm ing likelihood of success o n the m erits, enjoining it from enforcing its p lainly lawful policy is a constitutionally significant injury.D O E # 1 V

. T R U M P 70

Institutional injury aside, the governm ent has dem onstr a t e d that its inability to enforce the P roclam ation pending appeal will cause irreparable harm

. See City & Cty. of S.F.
, 944 F.3d at 8 06 (finding irreparable harm where “the prelim inary injunctions w ill force DHS to grant status to those not legally entitled to it”). The President determ ined in Proclam ation No. 9 945 that imm igrants “wh o have not dem onstrated any ability to p ay for their” m edical care im pose significan t an d unwarranted costs on the Am erican h ea l th c are system

. 84 Fed. Reg. 53991. The Proclam ation do e s n o t apply once an imm igrant has been adm itted to the United States, so it can n ever apply to aliens adm itted during the pendency of this litigation. See 84 Fe d

. Re g

. at 53992–93. The costs they im p ose while the in

junction

rem ains in p lace are thus unrecoverable, creating irreparable harm

. See California v. Az a r , 911 F.3d 558, 581 (9th Cir. 2018).

The scope of the injunction h ere o nly confirm s both the fact of irreparable harm and its m agnitude. The injunction applies worldwide and, by the m ajority’s estim ation, “would negatively affect approx imately 60% o f all imm igrant visa applicants” and “375 ,000 imm igrants each y ear.” Maj. Op. 19. This o nly “pro v e[s] [the g overnm ent’s] point,” confirm ing that the harm “is not only irreparable, but significant.” City & C

ty. of S.F.
, 944 F.3d at 8 06. Nor is the resulting injury lim ited to “third parties,” as the m ajority suggests. Maj. Op. 19. The governm ent funds considerable aspects of our healthcare system , and it is undeniable that the uninsured w ould require the governm ent t o “ i n cur som e otherwise avoidable financial costs if a s t ay i s denied.” Golden Gate Rest. Ass’n v. City & Cty. of S.F.
, 512 F.3d 1112, 1125 (9th Cir. 2008); see also Azar
, 9 11 F. 3 d at 581D O E # 1 V

. T R U M P 71

( e xplaining that “econom ic harm ” is “irreparable” when th e governm ent “will n ot be able to recover m onetary dam ages”).

Contrary to the m ajority opinion, the harm s here are also
not “ p ur e l y m onetary.” Maj. Op. 18. The P roclam ation identifies n on-m onetary harm s that the uninsured im p ose , such as increased strain on “publicly funde d p r ogram s” and overreliance o n em ergency room s, “causing overcrowding and delays for th o s e who truly need em ergency services.” 84 Fed. Reg. 53991. These too are irreparable harm s that
cannot be avoided absent a stay of the injunction. See G olden Gate Rest. Ass’n
, 512 F.3d at 1125 (granting stay because

“ i n dividuals without health coverage are significantly less likely t o seek tim ely m edical care than those with health coverage,” and consequently are m ore l i k ely to “seek

em ergency treatm ent” f

ro m g o v ernm e nt-f

un d e d h o sp itals and clinics).

B

The m ajority o pinion disbe l i eves the governm ent’s asserted harm s because wh i le the Proclam ation states that “imm igrants are about three tim es m o re likely than United States citizens to lack health insurance,” 84 Fed. Reg 53991,” there is, the m ajority com plains, “no citation in the Proclam ation for this st atistic.” Maj. Op.16. This is of a piece w ith the m ajority’s criticism th at th e P ro clam ation lacks “data-driven analysis” or a “further cost quantification” (an apparently technical requirem ent that the m ajority opinio n leaves undefin e d ). Id. at 17, 30. The m ajority’s failure to give the Executive any deference is clear legal error.

A presidential proc l a mation is not a second-grade m ath assignm ent, wh ere a student m u st “show his work” to getD O E # 1 V

. T R U M P 72

credit. In Tr u mp v. Hawaii
, the Suprem e Court found it “questionable” whether the President operating under § 1182(f) was in any way required to “explain [ his] finding[s] with sufficient detail to e n able judicial review.” 1 38 S. Ct.
at 2409. But “even assum ing that som e form of re v i ew is appropriate,” the Suprem e Court still rejec te d “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s ju stif

icatio n s, ” wh ich w o u ld b e “inconsistent with the b road statuto ry t ext and the d eference traditionally accorded the President in this sphere.” Id.

The m ajority’s dem and that the gov ern me nt explain the Proclam ation’s factual findings, Maj. Op. 15–16, is thus directly contrary to the Suprem e Court’s adm onition that the President is “‘not required to conclusively link all o f the pieces in the puzzle befo r e [c o urts] grant weight to [his]

em pirical conclusions.’” H

awaii
, 1 38 S. Ct. at 2409 (quoting Holder v. Humanitarian Law Project
, 561 U.S. 1, 35 (2010)). The Constitution does not require the President to engage in the m ajority’s preferred “d at a -driven analysis” o r “cost quantificati o n, ” n o r does § 1 182(f). Maj. Op. 17, 30. The
court today thus shows a profound disrespect to the Ex e c u t ive, contrary to p recedent. And the m ajority’s token acknowledgem ent that § 1182(f) “‘exudes deference t o th e President,’” Maj. Op. 2 8 (quoting Hawaii
, 138 S. Ct

. at 2408), is no substitute for the actual deference owed to the President’s findings when those findings are under review.

The m ajority opinion also e r rs i n attem pting to distinguish Trump v. Hawaii on the ground that the proclam ation at issue
t h e r e c o n t a i n e d “ e x t e n s i v e f i n d i n g s ” f

o l l o w i n g a “com p reh e n s i ve” inter-agency review. Maj. Op. 18 (quotations om itted). As discussed above, Trump v. H awaii rejected the prem ise that these findings were even necessary.D O E # 1 V

. T R U M P 73

See 138 S. Ct. at 2409 (rejecting “ p l a i ntiffs’ request for a searching inquiry into th e persuasiveness of the President’s justifications”). Nor d id the Supreme Co urt in Trump v. Hawaii suggest that the quantum of findings at is s ue there represented a constitutio n al o r statu to ry floor. Instead, Trump

v. Hawaii referenced prior presidential procl a mations that

were just several sentences long. I d. As was the case with the proclam ation in Trump v. Hawaii itself, Proclam ation No. 9 945 is “m ore detailed” than those. Id. The notion th at Trump v. Hawaii som ehow supports today’s decision is thus plainly incorrect.

Finally, the m ajority se r i ously errs in suggesting that because the governm ent is see k i n g a stay of an injunction, which is an exercise o f the court’s “ discretion,” the
governm ent is n o t e ntitled to the d eference that Trump v. Hawaii comm ands. Maj. Op. at 17. The procedural p osture of a case is not a l i c en s e to disregard the fundam ental principle that “‘it is not the judicial role

. . . to probe and test the justifications’ o f imm igrati o n policies.” Hawaii
, 1 38 S. Ct. at 2419 (quoting Fiallo v. Bell, 4 30 U.S. 787, 799 (1977)). The court’s ap p r oach loads the dice against the governm ent any tim e a district court enjoins a governm ent policy. Sim ply put, the deference that § 1182(f) “ex u de s , ” id. at 2 408, does
not evaporate whenever a single district court has enjoined a presidential policy and the governm ent is seeking a stay.

In any e v en t , for all the court’s refusal to accept the Proclam ation’s d eterm ination that imm igrants are three tim es

m ore likely than citizens to l a ck health insurance, the plaintiffs do not even contest this point. In fact, a report that plain t i ffs’ own expert authored (which is referenced in his expert m aterials in this case) m akes the ve ry sam e observation: “[A]lm ost half of all imm igrants—here definedD O E # 1 V

. T R U M P 74

as noncitizen imm igrants—are uninsured, a level that is about three tim es h igher than fo r native-born citizens.” Leighton Ku, Why Immigrants Lack Adequat e Access to Health Care and Health Insurance (Migration Policy Inst., Sept. 1, 2006).

C

Instead of giving the President any deferen ce, the

m ajority m akes som e f

indings of its own and then treats those

as authoritative. Contrary to the Proclam ation, the m ajority
t e lls us there is no irreparable harm because, in f ac t , “ th e im p act o f un in s ured im

m ig r ant s o n u

n c o m p en sated h ealth care costs is m inim al.” Maj. Op. 18. For this, the m ajority relies on only a single source: the declaration of p laintiffs’ expert, Dr. Leighton Ku. See id. a t 1 7

. But exuding deference to Dr. Ku is not what the law allows.

Dr. Ku is a p rofes so r of health policy. The o nly p rior expert work h e discloses i s on behalf of plaintiffs who are challenging various imm igration policies from the current presidential adm inistration. W ithout any basis at all, Dr. Ku opines that “the President and the State Departm ent, which is charged with im

plem enting the [P]roclam ation, failed to conduct a careful and r e a s on ed analysis of the policy.” Dr. Ku criticizes the President for acting “without a reasoned approach to adm inis trative rulem aking,” faulting the E x ecutive for “fail[ing] to caref u lly co n sid er t

h e ramif i catio n s of this policy.” Dr. Ku f

urther m aintains that “if the P resident is c o n cerned about reducing uncom pensated care as expressed in the [P]roclam ation
, then it would m ake m ore

sense to

. . . expand[] Medicaid or other form s of health insurance, such as the health insurance m arketplace s .” It sho u l d go without saying that the Constitution d oes notD O E # 1 V

. T R U M P 75

enshrine the unsupported legal opinions and transparent policy preferences of an unelected academ ic.

The m ajority’s fealty to Dr. Ku is even m ore rem arkable when one exam ines his conclusion that uninsured imm igrants do not burden the Am erican healthcare system

. Dr. Ku asks in his declaration: “[W ]hat is the value of uncom pe ns ated

care provided to legally adm itted imm igrants who m ight have been affected by this [Proclam ation]? ” Dr

. Ku then adm its that “ I am not aware of any information that acc urately

answers this question .” Id. (em p hasis added). That is enough to disregard his opinion.

Dr. Ku then proce e d s t o c o m e up with an answer to the question o n his own. But in arriving at the figures that the

m ajority treats as definitive, Maj. Op. 16
, Dr. K u com pares “recent imm igrants” (those “who entered the U.S. within five years” of 2017) to “not recent imm igrants” (“U.S. borncitizens and immigra n t

s who h ave been in the U.S. for five
years or m ore” (em

phasis added)). This com parison does not

even try to m ea sure the cost of care provided to uninsured imm igrants in the United States. No wonder even Dr. Ku in his own d eclaration “recognize[s] that this is n o t an ideal analysis.”

An expert who has disqualified him self under Daubert v. M e rrell Dow Pharmaceuticals, Inc.
, 5 09 U.S. 579 (1993 ), thr o u g h his o wn adm issions should not be the basis for enjoining a lawful presidential proclam ation. If nothing else is clear under the Constitution and Suprem e Court case law interpreting § 1182(f), it is that a professor’s self-described “not

. . . ideal analysis” should not win out over the conclusions of the President. The m ajority’s ele va t ion o f Dr. Ku’s declaration over the E xecutive’s determ inat i ons inD O E # 1 V

. T R U M P 76

the Proclam ation is a radical d ep arture f rom settled law and a serious threat to the dem ocratic process.

The m ajority also refus es t o give deference to the President based on its d eterm ination that “imm i g r an ts are

m ore likely to represent favorable insurance risk[s] in [ACA]

m arketplaces b ecause they tend to b e relatively healthier than the norm al insured popu latio n an d u se fewer healthcare goods and services.” Maj. Op. 17 (quotations om itted). The

m ajority p urports to locate this conclusion in “[t ]h e r ecord” in this case. Id.

But what the m ajority cites on this point, and what it calls “the record,” is really just an am icus brief from twenty-one States, the District o f Colum b ia, and New York City, which

was subm itted in the distr i c t c o urt. And what that am icus brief cites are the comm ents these s a m e States subm itted in
response to a St a te Departm ent n otice describing h ow the Departm ent would im

plem ent the Proclam ation. These

comm ents did not disclose any underlying data or undertake any apparent study of imm igrant healthcare costs. See, e.g.
, C o v ered C a l. C mt. On DOS-2019-0039-0001 (O ct. 3 1
, 2 0 1 9 ),

av a i l a b l e at : htt p s : / / www

. r e gu l a

ti o n s

. g o v/ d o c u

m e nt ?D = D O S

2019-0039-0241 (California’s three-and-a-half page le t t er). But regardless, it is quite circu lar for adm inistrative

comm ent s that unsuccessfully “urge[d] the withdrawal” o f Proclam ation N o. 9945, id.
, to wind u p as authoritative when cited in the sam e comm enters’ am icus brief challenging that very Proclam ation.

In sh o rt, the m ajority’s d eterm ination that the governm ent has not m ade a showing of irreparable harm d e p e n d s on its refusal to give the President any deference at all, contrary to precedent.D O E # 1 V

. T R U M P 77

V

The g overnm ent has shown an overwhelm ing likelihood of s u ccess on the m erits, as well as irreparable harm

. These facto r s ar e “the m ost critical” in the stay analysis, and only “[o]nce an applicant satisfies” these factors will the court consider “harm to the opposing party and weighing the public interest.” Nken
, 556 U.S. at 434–35. Considering those third and fourth stay factors o n ly confirm s that the court should have issued a stay.

A

The m ajority o pinion strives to create the im pression that the n am ed pla i n t i ffs’ relatives were on the cusp of entering the United States and that only the P rocla mat i on is holding them b ack. The m ajority thus asserts that “[t]he ind i v i dual [p]laintiffs are seven U.S. citizens” whose “fam ily m em bers have successfully com pleted the traditional steps for obtaining an imm ig r ant visa.” Maj. Op. 12–13. But that is
untrue: m ost o f p l aintiffs’ relatives do not even have visa interviews scheduled and s o me have not subm itted required docum entation. 3 The m ajority further states that p lainti ffs’ “fam ily m em

bers had qualifie d for entry under established imm igration p olic y.” Id. at 36. That is also untrue. Nor is there any basis for the m ajority’s scaled back assertion that the nam ed plaintiffs’ relatives were “otherwi se likely

3 The only exception is the relative of one nam e d pl ai ntiff who received an im

m igrant visa after th e d i s trict court issued its injunction. Plfs.’ Notice of A d ditional Facts, Doe #1 v. Trump
, Case No. 3:19-cv0 1743-SI (D. Or.), ECF No. 123. But neither the Proclam ation n o r the district court’s i n

junction n ow have any bearing on th i s p e rs o n

. This section will thus discuss o nly the plaintiffs w ith any potential future harm
, even if that harmis ultim ately speculative.D O E # 1 V

. T R U M P 78

qualified for e n try under § 1182(a)” for adm ission into the United States. Id. at 21. W ith the one exception noted above,

see ante at 77 n.3, it is entirely speculative whether the nam ed plaintiffs’ relatives will m eet the num erous eligibility requirem ents and would be allowed to enter this co un try at all, regardless of Proclam ation No. 9945.

The m ajorit y fails to disclose that the nam ed plaintiffs have only received approved I-130 petitions. A United States citizen files an I-130 petition w ith the U.S. C iti z e n ship and Immigration Services (USCIS) or a consular official, on beha l f of a relative who is seeking to b ecom e a perm anent resident in the United States. 8 U. S.C. § 1154(a)(1)(A)(i); 8 C.F.R. § 204.1(a)(1). Approval of an I-130 petition is “only the first step in the process” toward becoming a lawful
perm anent resident. Montoya v. Holder
, 744 F.3d 614, 616 (9th Cir. 2014); see also Vasquez de Alcantar v. H older
, 645 F.3d 1097, 1103 (9th Cir. 2011).

On ly then, after the alien proceeds through the queue , does the alien apply f

or a visa and the United States begin its review of any request for adm ission. Kerry v. Din
, 135 S

. Ct. 2128, 2131 (2015) (plurality op.) (“If and when a petition is approved, th e alien m ay apply for a visa by subm itting the

r e quired d ocum ents and appearing at a United Sta t e s Em bassy o r consulate for an interview with a consular officer. Before issuing a visa, the consular officer m u st ensure the alien is not inadm issible und e r any provision of the INA.”) ( c i t a t i ons om itted); Montoya
, 744 F.3d at 616. As we hav e recognized, “[t]he wait tim e f or these imm igrant visas can be considerable.” Landin-Molina v. H older
, 580 F.3d 913, 920 n.8 (9th Cir. 2009); see also Scialabba v. Cuellar d e Osorio
, 573 U.S. 41, 50 (2014) (plurality op.) (“All of th i s t a kes tim e—and often a lot of it

. . . . A fam ily-sponsoredD O E # 1 V

. T R U M P 79

im m ig rant m ay stan d in line for years—or even decades—ju st waiting for an imm igrant v isa to becom e available.”). T here

are also m

yriad reasons why a p er s o n m ay ultim ately be denied entry. See 8 U.S.C. § 1 182(a); 22 C.F.R. § 42.62. The Proclam ation, o f course, ensures that all these other requirem ents for adm ission rem ain intact.

As the f oregoing confirm s, approval of an I-130 petition “cannot be th e e qu ivalent of inspection and authorization to enter and rem ain in the United States.” Vasquez de Alcantar
, 645 F.3d at 1103. It “does n o t confer any change in status.” Id. ; see also Ngongo v. Ashcroft
, 397 F.3d 8 21, 823 (9th Cir. 2005). Instead, we have explained, appro v a l of an I-130 petition “does not raise [an] ali e n ’ s expectations” for
p erm anent residence “above the level of hope.” Monto ya , 744 F.3d at 617 (quotations o m itted). The m ajority therefore

err s in suggesting that plaintiffs’ relatives were qualified to becom e lawful perm anent residents or were about to reach that status, but for the Proclam ation.

The nam ed plaintiffs’ d eclarations only confirm this. When the distr i c t c o urt issued its injunction, none o f the plaintiffs’ relatives had consular interview dates scheduled, and seven such relatives are still awaiting interview dates. Doe #1
, 2020 WL 1689727, at *6–7. Interviews aside, various plaintiffs w ere still working to subm it the appropriate paperwork to apply for a visa when the injunction w as issued. See Doe #2 Decl. ¶ 7 ( “[W]e are currently working on the collect i o n of inform ation and d ocum ents

. . . .”); id. ¶ 9 (“I will need a joint sponsor in order to com plete the affidavit o f support section of m

y parents’ imm igr an t v i sa.”); Doe #3 Decl. ¶ 9 (“[M]y husband and I have been working to gather the docum ents required for consular processing. Se v e ral tim es, we thought we had all of the paperwork subm itted, butD O E # 1 V

. T R U M P 80

the governm ent then requests additional, and different inform ation from us.”); Ram o s Decl. ¶ 12 (explaining that she is “in the process of g athering all the docum ents required by the consulate”). And m any m onths later, at least two o f plaintiffs’ relatives are still “collecting the n ecessary inform ation.” Doe #1
, 2020 W L 1689727, at *6. Th i s o n ly confirm s that plaintiffs’ relatives are still in the m iddle of the visa process.

Equally m isplaced is the m ajority’s em phasis on c e rtain fam ily m em

bers who have received provisio nal I-601A waivers

. See Maj. Op. 21. I-601A waivers are available to aliens in the consular visa process who have been unlawfully present in the United States and who are imm ediate relatives of U.S. citiz e n s. See 8 U.S.C. § 1182(a)(9)(B)(i); 8 C.F.R. § 212.7(e). The I-601A waiver was developed to expedite the intervie w process by allowing applicants “who require a waiver of inadm issibility for unlawful pres e n ce to apply for such a waiver in the U.S. before they depart for an imm igrant

v isa interview at a U.S. em bassy or consulate abroad. ” Romero v. Barr
, 937 F.3d 2 82, 287 n.2 ( 4 th Cir. 2 019) (em phasis added).

The g rant of an I-601A waiver, like the approval of an I130 p etition, is thus a p refatory m echanism to facilitate the visa application process. It does not m ean that plaintiffs’ relatives wer e “ o therwise likely qualified” for adm ission to the United States. Nor can the m ajority reasonably m aintain
th a t the Proclam ation w ill result in fam ily separation fo r persons with I-601A waivers. M a j. Op. 21. Once again, b ec au se there is no indication that plaintiffs’ relatives are otherwise adm issible, it is im possible to say that any f am ily

s eparation is due to the Proclam ation, as opposed to th e

num ero u s other requirem ents that o ur imm igration lawsD O E # 1 V

. T R U M P 81

im pose. Given that plaintiffs’ r e l a t i ves have not com pleted the visa p r o c e s s, the Proclam ation is n ot the imm ediate (or future) cause of any alleged fam ily separation.

Finally, it also is n ot apparent that plaintiffs’ fam ily

m em bers will be unable satisfy the Proclam ation. The district
court enjoined the Proclam ation b e fo r e it could take effect, allowing no chance for any person to even attem pt to satisfy the P roclam ation’s requirem ents. The Proclam ation allowed the Secretary of State to “establish standards and procedures”
to govern consular officers’ application of the Proclam ation, 84 Fe d

. Re g. 53993; due to the injunction, we cannot know h o w any such guidance would affect consular officers ’ determ inations.

Although the m ajority claim s the plaintiffs “subm it t e d evidence” that the ir relatives are unable to m eet the Proclam ation’s requirem en ts, Maj. Op. 19, m any of the plaintif f s’ d e claration s p ro v id e n o d etails ab o ut their finances, the am ount o f incom e th e y or their relatives have available,

or the prices of qualifying plans under the Proclam ation. The Proclam ation also gives the Secretary of State or his designee the ability to exem

pt alie n s “ wh o se entry would be in the national interest,” as determ ined on a “cas e -by-case b asis.” 84 F ed. Reg. 53993. For all these reasons, it is entirely
specu l ative h ow the Proclam ation will affect anyone who is still going through the im m igration process.

In short, the sincere “hope” that plaintiffs’ relativ e s will qualify for legal status is no substitute for actual evidence that plaintiffs’ relatives are entitled to visas but for the Proclam ation. On that issue, there is no evidence at all.D O E # 1 V

. T R U M P 82

B

The m ajority creates another m isim pression in purporting
to justify the injunction “based on evidence in the record” that the “Proclam ation would cause significant harm to 2 1 states, the District of Colum

bia, and N ew York City if allowed to go into effect there.” Maj. Op. 3 7

. The m ajority tells us that “[t]he record dem onstrates” the “significant harm ” these jurisdictions would suffer if the Proclam ation is allowed to go into effect. Id. at 34–35 (em phasis added). And the m ajority opinion f urth e r inform s us this “ evidence [was] credited by the d istrict c o urt, and that “[t]he governm ent does not seriously contest this evidence .” Id. at 35 (em phases added).

These statem ents are, regrettably, quite m isleading. The only source for the cited “ ev id e n c e ” is the am icus brief that twenty-one Sta t es, the District of Colum bia, and New York City filed in th e district court. T he Suprem e C ourt has i n structed that “the stated desires o f amici are no substitute for a class action, are n ot evidence in the case, and d o not influence our decision ; we exam ine an amicus curiae brief solely for wh at e v e r aid it provides in analyzing the legal questions before us.” Sony C orp. of Am. v. Universal City Studios, Inc.
, 464 U.S. 417, 434 n.16 (1984). The m a jo r ity

o pinion violates these fundam ental precepts. But it is, unfortunately, m ore problem atic than that.

The “evidence” of “significant harm ” to the jurisdictions that joined the amicus b rief consists of the following: tho u s an d s of persons in these S tates becom e lawful
perm anent r e s idents each year, and imm igrants “are vital to the econom ic, civic, and social fabric of our states and city.” Maj. Op. 35 (quotations o m itted). These assertio n s cannot justify the district court’s injunction. It is of course true thatD O E # 1 V

. T R U M P 83

imm igrants are vital to the econom ic and cultural life of our St a te s and cities. B ut b y this logic, any federal policy th at

re du ces imm igration could be enjoined on that basis, giving States and localities the power to negate federal imm igration
p o licy. The acknowledged contributions that imm igran t s

m ake to our States are thus not grounds for enjoi ning the Executive Branch from recalibratin g im m ig ratio n ru les in line with the President’s lawful pol i c y g oals. And it cannot be that State or local g overnm ents that op p o s e a presidential policy can have the p o licy en jo in ed thro u g h the comm onplace act of joining a State-led am icus brief.

C

For all the reasons I h ave set f orth, the public interest also strongly sup p ort s staying the injunction. Nken
, 556 U.S.
at 4 3 4. A s we have rec o g n i z e d, the governm ent’s interests and the public interest tend to m erge since “responsible public officials

. . . have already considered” the public interest in enacting the policy at issue. Golden Gate
, 512 F.3d

a t 1127. Our review o f the public interest is thu s “constrained,” and “it is b eyond our province to evaluate the wisdom ” of the Proclam ation that the P resident chose to put in effect. Id.

That is the result that the four stay fac t o r s require. The

m ajority, h owever, adds a new, unauthorized stay factor: preservation of the status quo. Maj. Op. 3 5–36. The m ajority

reasons that the “publi c i nterest lies with m aintaining the
status q uo while the appeal is pending,” an d th a t the status quo is a w orld without the P roclam ation. Id. at 36. The

m ajority is wrong on two l e v e l s

. C ircuit precedent is clear
th a t m aintenance o f a “status q uo” is n ot am ong the factor s that courts consider in resolving a request to stay anD O E # 1 V

. T R U M P 84

i njunction. And even if it were, the m ajority is wrong o n what the status quo is.

In Golden Gate Restaurant Associatio n v

. City and County of S

an Francisco
, 512 F.3d 1112 (9th Cir. 2008), we granted a m otion to stay pending appeal a district court’s i n junction of a San Francisco ordinance that requi r e d

em ployers to m ake m inimum healthcare expen d itu res to or on b eh alf of their em

ployees. The em

ployers argued that th e City, in seeking a stay of the injunction and reinstitution o f its ordinance pending appeal, “m us t m eet a higher standard,” because “in [the em

ployers’] v iew, a stay would change the

s ta tu s qu o

. ” Id. at 1116. W e disagreed. W e held that the Suprem e Court “did not include preservation of the status quo

am ong the factors regulatin g th e issuance of a stay.” Id. (quotations om itted). And we noted that “several of our sister circuits, in reviewing prelim inary injunctions enjoining im plem entation of new legislation, have granted m o tions for stays of those inju n ctions pending appeal without weighing whether a stay would disturb or preserve the status quo.” Id. at 1117.

Our decision in Golden Gate also dem onstr a t e s that the

m ajority m isperceives th e s t a tus quo, even if it were a

r e l e v ant consideration. As we explained in Golden Gate , “granting a stay” of th e i n j un c tion “would, in a real sense, preserve rather than change the status quo,” because “[i]n the absence of the district court injunction” the ordinance “would

now be part of the status qu o .” Id. at 1116. The rules governing stays should be no different for an o rdinance that requires em

ployers to confer healthcare benefits ( G olden Gate ) than a rule requiring imm igrants to dem onstra t e they will have qualifying health insurance (this ca se )

. As inD O E # 1 V

. T R U M P 85

Golden Gate
, in the absence o f the district court’s injunction, Proclam ation No. 9945 would be part of the status quo.

The true status quo is thus not a judicially created one. As I previously explained, “while the plaintiffs assu me that the status quo is a world without the Presidential Proclam ation,

. . . the actual status quo is a legal environm ent in which the President p osse sses ‘sweeping proclam ation
power in § 1182(f),’ H

awa ii
, 138 S. Ct. at 2408 (quotations

om itted), and in which Proclam ation No. 9945 is therefore authorized.” Doe #1
, 944 F.3d at 1229 (Bress, J., dissenting). A stay “sim

ply suspend[s] judicial alteration of the status quo ,” Nk e n , 5 56 U.S. at 429, which is all the g overnm ent is requesting here.

The ma jority is therefore wrong to assert that “[i]n the
governm ent’s re-im agining of the status quo in this context, this f actor w ould a lways tip in the g overnm ent’s favor, effectively render i n g the Court powerless to exercise its discretion on this fa c t or in such instances.” Maj. O p. 36. That is not correct, b e c au se the governm ent m ust m eet the
tr a d itional N

ken factors to earn a stay. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott
, 134 S. Ct. 506, 507 (2013) (Scalia, J., concurring) (explaining
th a t n o “accepted standard” “require[s] a court to delay enforcem ent of a state law that the court has determ ined is likely constitutional on the ground that the law threatens disruption of the status quo” ) (quotations om itted). It is instead the m ajority that is “re-im agining” the status quo and creating a rule that, contrary to Golden Ga t e , would require denying a stay of any injunction that bloc k s new p olicies from going into effect, because anything new can always be described as changing the status quo.D O E # 1 V

. T R U M P 86

VI

W e arrive at last at the scope o f the injunction, which applies nationwide and to p ersons around the world seeking entry into the United States. My view, of course, is that there should b e no injunction in the first place. Bu t the extrem e scope of the district court’s injunction presents ne w an d troubling issues of its own.

In a brief section, the court today blesses the district court’s injunction based on a class certification order entered

m onths after the fact and the p urported n eed for uniform ity in imm igration p olicy. See Maj. Op. 37–40. The m ajority’s approach—and the class certification decision it im p licitly endorses—are procedurally and substantively flawed. Nationwide injunctions raise m any fundam ental questio n s about the prop e r use o f judicial power. Perhaps f or that

r eason, the Suprem e Court has repeatedly stayed suc h injunctions pending appeal. See Innovation Law Lab
, 2020 WL 1 1 6 1 4 3 2, at *1; New York
, 140 S. Ct. at 599; E. Ba y Sanctuary Covenant
, 1 40 S. C t. at 3; Int’l Refugee Assistance Project
, 138 S. Ct. at 542; Hawaii
, 138 S. Ct. at 542. W e should have done that ourselves in this c a s e

. Today’s decision un fortunately reflects y et another exam ple of the

m isuse of universal injunctions and the m isunderstanding o f class certification on which they are so frequently prem ised.

A

Let’s begin w ith the sequ e nce of events here, which should be cause for concern. Whe n the district court issued its injunction in Novem

ber 2019, no class had been certified and any p utative “class m em bers” were not parties t o the

case. S e e S mith v. B a

yer Corp.
, 564 U.S. 299, 313–14D O E # 1 V

. T R U M P 87

(2011). Under what I h ad thought w as the law of our circuit,

n atio nw id e relief is o n l y appropriate where “ necessary to g iv e prevailing parties the relief to which they are entitled.” Azar
, 911 F.3d at 581 (em

phasis in original and quotations

om itted); see also New York
, 140 S. Ct. at 600 (Gorsu c h
, J., concurring) (“Equitable rem edies, like rem e d ies in general,

are m eant to redress the injuries sus t a i n e d by a particular plaintiff in a part icular lawsuit.”); Zepeda v. INS
, 753 F.2d 719, 728 n.1 (9th Cir. 19 8 3 ) ( “ Without a properly certified class, a court cannot grant relief on a class-wide basis.”).

The d istrict court’s injunction was thus vastly overbroad when issued. At that tim e, any injunction could at m ost have extended to the n a med plaintiffs, because no further injunction would h ave been necessary to give these plaintiffs relief. Azar
, 911 F.3d at 581. As I thus wrote m any m onths
ago when we w ere considering the governm ent’s request for
tem porary em ergenc y relief pending appeal, the district court’s universal injunction could not stand because it “shortcircuits the p rocedu r e s for class certification by giving thousands of perso n s not before the court the relief that the class certification process is des igned to evaluate.” Doe #1
, 944 F.3d at 1228–29 (Bress, J., dissenting).

Now fast-forwar d m any m o nths later. Months after briefing and argum ent in this court on the g o v e rn m ent’s

m otion for stay pending appeal—and n early half a year after the district court first blocked the Procl a mation f rom taking effect nationwide—the d i s trict court issued its class certification dec i s i on, certifying nationwide and worldwide classes. D oe #1
, 2 0 20 W L 1689727, at * 1 7

. The m ajority today relies on this later c l as s certification decision to leave in place the district court’s earlier universal injunction. Maj. Op. 37.D O E # 1 V

. T R U M P 88

This is quite unsettling. The m ajority ’ s r eliance on the district court’s recent class certification decision is a concession that until a short tim e ago, there w as n o v a lid basis for th e d i s tr i ct court to enjoin the Proclam ation as to anyone b ut the n a med plaintiffs. Maj. Op. 37 (“[T]he injunction is appropriate at this juncture, wh e th er o r not it

was when originally issued.”). Ye t when the issue was presented to us four m onths a g o , we refused to stay any portion of the nationwide i n junction. See Doe #1
, 944 F.3d
at 1228–29 (Bress, J., dissenting). T h at, in turn, allowed the district court to catch up to o ur deliberative process and issue the class certification ruling that supposedly justifies a

universal injunction and without which the injunction could not stand.

The problem s with this course of events are innum erable. Blocking a presidential policy for m any m onths nationwide, without justification, is no sm all thing. And by ratifying the

s cope o f the district court’s injunction, the m ajority invites district courts to issue overbroad injunctions u p front, only to be followed som e m onths later by the class certification decisions that supposedly undergird them

. This has it backwards. The scope o f a prelim inary injunction should be supported at the tim e it is issued, not m o nths later and while the injunction is on appeal. The inversion of operations that the court tacitly approves today will only lead to pathdependency in the district courts, creating hydraulic pressure t o c e rt i fy a class in order to justify a previously issued nationwide injunction that is now on appeal. That is not h ow this process should work. Indeed, the g o vernm ent h as not

even yet ha d the o pportunity to appeal the d istrict court’s class certification rul i n g, which is now, per the m ajority’s opinion, the linchpin of the district court’s injunction. S ee Fed. R. Civ. P. 23(f).D O E # 1 V

. T R U M P 89

The m ajority opinion treats the district court’s disordered approach as “no harm
, no foul” because this is the only case challenging Proclam ation No. 9945. T he m ajority tells us that “[n]o litigation challenging this Proclam ation is pending elsewhere, alleviating concerns occasionally associated with nationwi d e injunctions,” nam ely, “that such injunctions deprive other courts from o ffering d iverse perspectives on the legal issues while sim ilar litigation is ongoing in m u ltiple forum s.” Maj. Op. 38.

But why is there n o other case challenging P roclam ation No. 99 4 5 ? The m ost likely reason is because the district

c o urt i n this case blocked the Proclam ation before it could

even tak e effect. W ith an all-encompassing injunction in hand, no putative class m em ber had any reason to bring suit

e lsewhere. F ar from showing that the district court ’s injunction poses no threat to the per colation of legal issues, the absence of parallel litiga ti on on Proclam ation No. 9945 confirm s that nationwide injunctions can, in fact, stym ie the d ev e l o pm ent of legal challenges. See E. Bay S anctuar y Covenant v. Barr
, 934 F.3d 1026, 1029 (9th Cir. 2 0 19); Azar
, 911 F.3d at 583. All of this was m ade possible by the district court’s d ecision to enjoin the Proclam ation first an d c e rtify classes m any m onths after the fact.

B

The district court’s universal injunction fails not only as

a mat ter of procedure, but o n substantive grounds as well

. Nationwide injunc t ions of federal policies are increasingly

comm o n y et h ighly controversial. Som e m em bers of the Suprem e Court have raised im portant concern s about them

. See New York
, 140 S

. Ct. at 600–01 (Gorsuch, J., concurring); Hawaii
, 138 S. Ct. at 2425–29 (Thom as, J., concurring). ThisD O E # 1 V

. T R U M P 90

case underscores that the proble m with n ationwide injunctions often lies not m erely in their equitable excess, see New York
, 140 S. Ct. at 600–01 (Gorsuch, J., concurring), but with a failure to take seriously the restrictions on class certification that Rule 23 im p oses. The proble m with m any

n at i onwide injunctions, in o ther words, is that they ar e prem ised o n class certification orders that ar e them selves infirm . That is the case here.

Class certification, “an exception to the usual rule that litigation is conducted by and on b e half of the individual

nam ed parties only,” is “proper on ly i f the trial court is satisfied, after a rigorous an a lysis, that the prerequisites o f Rule 23(a) have been satisfie d.” Wal-Mart Stores, Inc. v. Du kes
, 564 U.S. 338, 3 49–51 (2011) (quotations om itte d ). Most challenges to federal policies like the one before us seek injunctiv e relief classes under Rule 23(b)(2). But such classes are still sub

j ect to the strictures of Rule 23(a), including the core requirem ent that a case present “questions of law or fact comm on to the class.” F ed. R. Civ. P. 23(a)(2). That p rovision requires “not the r aising of comm on ‘questions’—even in droves—but rather, the capacity of a class-wide pr o c e e d ing to generate comm on answers apt to drive the resolution of the litigation.” W a l-Mart
, 5 64 U.S. at 350 (em

phasis in original and quotations om itted).

The m ajority states without analysis that the univers al injunction here “is also base d on the certified subclasses, which elim inates som e concern that a nationwide injunction is overly burdensom e.” Maj. Op. 38–39. But even an initial glance at the two classes the district court certified shows that the class certification h ere was anything but proper. T he first

c e rtified class, consisting of persons in the United State sD O E # 1 V

. T R U M P 91

petitioning f

o r a fam ily m em

ber to receive an imm igrant visa, was defined as follows:

(1) U .S. Petitioner Subclass :

Individuals in the United States who currently have or will h a ve an approved or pending petition to the United States governm ent t o sponsor a noncitizen fam ily m em ber for an imm igrant visa; and whose sponsored fam ily

m emb er is subject to the P roclam ation and unable to dem onstrate to a consular officer’s satisfaction that he o r she “will b e covered by approved h ealth insurance” within 30 d ay s after entry o r will be able “to pay for reasonably foreseeable m edical costs”; and

Doe #1 , 2020 W L 1689727, at *17.

Th e c e ntral p roblem with this class definition is tha t whether the Proclam ati o n will h ave any effect on putative class m em

b ers depends on two determ inations that are highly in d iv id u alized : (1 ) whether the class m em ber’s relativ e w o u ld be otherwise qualified for an i mm igrant visa but for Proclam ation N o. 9945; and (2) whether the class m em ber’s relative could satisfy the Proclam ation. Classwide injunctive relief un der Rule 23(b)(2) is appropriate “only when a single i n j unction or declaratory judgm ent would provide relief to each m em ber of the class.” Wal-Mart
, 564 U.S. at 360. And

comm onality under Rule 2 3(a) “requires the plaintiff to dem onstrate that the class m em bers have su ffered the sam e injury.” Id. at 3 50 (quotations o m itted). “ Th a t comm on contention, m oreover, m ust be of such a nature that it is capable of classwide resolution—which means thatD O E # 1 V

. T R U M P 92

determ ination of its truth or falsity will resolve an issue that is centr a l t o the validity of each one of the claim s in o ne stroke.” Id.

In this case, this analysis cannot be done on a classwide b asis, tu rn in g instead on h ighly individualized d etermin atio n s about whether a given person would m eet the INA’s v arious requirem ents for eligibility and whether, based on a person’s financial, fam ily
, m edical, and em ploym ent situation, he would be able to satisfy the Proclam ation. Indeed, the class definition on i ts face does not even require that the class

m em bers’ rela tives be o therwise qualified for imm igrant visas, and it ties class m em bership to the m ere filing of a “petition,” which (as the district court acknowledged) is just “[t]he first step” in the visa application process. Doe #1
, 2020 W L 1689727, at *3. Persons in this situation have not

even subm itted the required docum entation. In fact, the class is not even lim ited to persons who h ave “filed” a petition at all, but extends to anyone who “will” file one.

It is no answer, as the district court suggested, id. at *12, that plaintiffs in this case are not seeking visa determ inations. The p rem ise of this entire lawsuit—and the asse rt e d imm ediate need f

or the injunction—is that Proclam ation No. 9945 is the “but for” cause preve n t in g plaintiffs’ relatives from obtaining imm igrant v isas. That is why the m ajority opinion goes to great lengths to assert, albeit inaccura t ely, that plaintiffs’ relatives we r e “otherwise likely qualified under § 1182(a)” for adm ission into the United States and h ad fam ily m em

bers who “had qualified for en try under established imm igration policy.” Maj. Op. 21, 36. Plaintiffs
cannot m ake this p oint in seeking an injunction, but then ignore it when it com es to class certification.D O E # 1 V

. T R U M P 93

The district court’s seco n d c l ass of “foreign n ationals” has, if possible, even m ore problem s un de r Rule 23. That class is defined as follows:

(2) V isa Applicant Subclass :

I n dividuals who are foreign n ationals who (i) have applied for or will soon apply to the United States governm ent for an immi grant visa; (ii) are otherwise el i g ible to be granted the visa; but (iii) are subject to the Proclam ation and unable to d em o n strate to the satisfaction of a consular offi cer that they “wi ll be covered by approved health insurance” within 30 days after entry or will be able “to pay for reasonably foreseeable

m edical costs.”

Doe #1 , 2020 W L 1689727, at *17.

The enorm ity of this class should be apparent: it includes
persons in co un tr ies all o ver the world. The sam e individualized determ inations described above for the U.S. class will be necessary fo r each m em ber of this foreign nationals class, except the determ inations will be even m ore difficult to accom

plish when class m em

bers ap p l ying for adm ission are located outside this country. In fact, this class is not even lim ited to persons who have applied for v isas, but extends to those who “ will soon apply ”—a term of uncertain scope that requires consideration of yet m ore individualized issues. It is im

possible to know t o d ay who, if anyone, will actually benefit from class certification since we do not know who otherwise qualifies for a visa to the United S tates or who will be unable to satisfy the Proclam ation’s requirem ents.D O E # 1 V

. T R U M P 94

In short, the idea that “class certificat i o n” is the incantation needed for a n ationwide injunction m isses the point that Rule 23 is d esigned to im p o s e l i mits on broad relief, not to g rease it. T he above discussion is not intended
to exhaust the problem s with the district court’s cla ss certification d ecision. But it shows that i n this case, the injunction’s extraordinary and im proper scope depends on a class certification ruling that d o es not withstand scrutiny under Rule 23. One suspects that m any of the current issues with nationwide injunctions can be traced to m isapplications of Rule 23. That is, at least, the case here. 4

C

Finally, the m ajority opinion errs in justifying the district

c o urt’s universal injunction based on “the need for a

com prehensive and unified imm igratio n policy.” Maj. Op. 39 (quotations o m itted). It is o f c o urse true that m any cases from the Suprem e Court and this court em phasi z e the im portance o f a uniform imm igration policy. E

. g. , Arizona v. United States
, 567 U.S. 387, 4 01 (2012); Lemus v. Lynch
, 842 F.3d 641, 649 (9th C ir. 2016). But the original context of these statem ents wa s the interpretation of federal imm igration law. That is true of the l e a d c ases the m ajority cites as well. See Maj. Op. 39 (citing Arizona an d Ka hn v. INS, 36 F.3d 1412, 1414 (9th Cir. 1994)).

4 T he m ajority suggests that “provisional” class certification is a basis for nationwide r eli e f a t th e prelim inary injunction stage. Maj. Op. 37. Despite i ts softer-sounding nam e, p ro visional class certification is still governed by the requirem ents o f Rule 23. E.g.
, M eyer v. Portfolio Recovery Assocs., LLC
, 707 F.3d 1036, 1041–4 2 ( 9th Cir. 2012); Valentino v. Carter-Wallace, Inc.
, 9 7 F.3d 1227, 1234–35 (9th Cir. 1996). In any event, the district court had not certified a class—provisionally o r otherwise—when it entered the injunction in this case.D O E # 1 V

. T R U M P 95

In m o re recen t t i m e s, however, our circuit has co-opted the policy of prom oting uniform imm igration laws as a justification f

or courts issuing nationwide injunct i o n s o f Executive Branch imm igration policies. See, e.g. , East Bay S a n ctu a ry C

o ven a n t , 950 F.3d 1242, 1283–84 (9th C ir. 2 0 2 0 ). The f it is not a good one. That there can b e an i n t e r est in having uniformimm igration policies does not m ean it is the
courts that can set those uniform policies. That is a decidedly different question.

Whether Congress intended a uniform policy in statutes like the INA s ay s nothing about whether—when courts are enjoining the imm igration policies of dem ocratically elected officials—it is preferable to g o big instead of sm all. Indeed, if uniform imm igration policy is the value to be prized above all else, nationwide inju n c tions will always be necessary, contrary to our cases. See E

. Bay S anctuary Covenant
, 934 F.3d at 1 029 (rejecti ng the v iew that a n ationwide injunction is appro p r iate “any tim e an enjoined action has potential nationwide effects,” which “would turn broa d injunctions into the rule rather than the exception”). Perhaps unsurprisingly, when we recently invoke d th e interest in uniform imm igration laws in allowing a n ationwide injunction, the Suprem e Court stepped in and stayed the injunction. Innovation Law Lab v. W o l f
, 951 F.3d 1073, 1094–95 (9th Cir. 2020), stay granted
, 2020 WL 1161432, at *1.

In this case, the m ajorit y opinion tells us that “a m ore lim ited injunction of the Pr oclam ation would needlessly

com plicate” imm igration enforcem ent, whereas a n ationwide injunction “prom otes uniform ity in adm inist ering federal imm igration law.” Maj. Op. 39–40 (citing Ea st Bay Sanctu a r y Co v enant , 950 F .3d at 1284). But it is theD O E # 1 V

. T R U M P 96

Executive Bran ch, not the courts, that are charged with enforcing the imm igrati o n laws. And in this court, the
governm ent m aintains it is better p olicy for the injunction to be narrowed, preferring a m o re lim ited enforcem ent of the Proclam ation to none at all. If the scope of an in jun c t i on should turn on which approach is superior for “adm inistering feder a l imm igration law,” Maj. O p. 3 9–40, why should our view on that ques t i on p revail? It is unfortunate that courts have injected them selves into debates such as this, which are far outside our role and competence.

It is thus som ewhat fitting that th e majority opinion invokes as authority for the district court ’ s n ationwide injunction and the “uniform ity of imm igration law” rationale

our circuit’s decision in Hawaii v. Trump
, 878 F.3d 662 (9th Ci r

. 2017). Maj. Op. 39 (citing the decision for the proposition that “[b]ecause this case im p licates imm igration policy, a nationwide injunction was n e ce ssary to give Plaintiffs a full expression of their rights”). As the m ajority

m ust quickly acknowledg e, th e cited decision was then “ rev’d

on other grounds ” by the Suprem e Court in Trump v. Hawaii
, Maj. Op. 39—a decision that vacated our court’s n ationwide injunction and the very case that confirm s Proclam ation No. 9945 is a v alid exercise of the President’s authority. In fact, the referenced decision from this c o urt in the Trump v. Hawaii litigation, and this court’s discussion of uniform ity in imm igration law, was handed down after the Suprem e Court had already stayed the nationwide injunction in full pending appeal. Hawaii
, 138 S

. Ct. at 542; Hawaii v. Trump
, 878 F.3d 675, 701 (9th Cir. 2017).

The uniform ity we should have pursued is the uniform ity of decision with T

rump v. H awaii

. That would have requiredD O E # 1 V

. T R U M P 97

staying in ful l the district court’s im proper and overbroad injunction. Because we do not do so, I respectfully dissent.