F OR P UBLICATION

UNITED STATES COURT OF AP P EALS F OR THE NINTH CIRCUIT

J O H N D O E #1; J U

A N R A M O N M O R A L E S ; J A

N E D O E , # 2; I R

I S A N G E L I N A C A S T R

O ; B L A K E D O E ; B R E N D A V I L L

A R R U E L ; L A T I

N O N E T W O R K ; J A N E D O E , # 3; G A B I

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

A N O S , Plaintiffs-Appellees

,

v

.

D O N A L D J

. T R

U M P , in his official capacity as President of the United States; U.S. D E P A R

T M E N T O F H O M E L A N D S E C U R

I T Y ; C H A D F

. W O L F , Secretary , U.S. Department of Homeland Security ; U.S. D E P A R T M E N T O F H E A L T H & H U M A N S E R V I C E S ; A L E X M. A Z A R I I
, Secretary of Health and Human Services; U.S. D E P A R T M E N T O F S T A T E ; M I C H A E L P O M P E O , Secretary of State, in his official capacity ; U N I T E D S T A T E S O F A M E R I C A , Defendants-Appellants. N o. 19-36020

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

ORDERD O E # 1 V

. T R U M P 2

F iled May 4, 2020

B efore: Sidney

R. Thomas, Chief J udg e, and Marsha S. B erz on and Daniel A. B r ess, Circuit J udg es.

Order by Chief J udg e Thomas; Dissent by

J udg e B r ess

SUMMARY *

Im m igration / P relim inary Injunction

The panel denied the g o vernment’s mot i o n for a stay pending appeal of the d istric t court’s preliminary injunction enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants W

h o W ill Financially Burden the United States Health Care System

.

I ssued on O ctober 4, 2019, the Proclamation barred, with

some ex ceptions, individuals seeking to enter the United States on an immig rant visa from entering unless they could d emonstrate that they will be covered by certain approved health insurance within 30 day s of entry or that they h ave the

resources to cover foreseea b l e healthcare costs. I ndividual Plaintiffs are seven U

. S

. citiz ens who are sponsoring family members for immigr a n t visas and whose applicant family

m e m b e r s h ave successfully completed the traditional steps fo r obtaining a n i m mig rant v isa, but would be barred from enterin g the U nited States under the Proclamation. The

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.D O E # 1 V

. T R U M P 3

o r g a n i za t ional Plaintiff provides prog rams aimed at educat i n g and e mpowering a c o mmunity of L atinos in Oreg on a nd provides services to navig a te the immig rant visa process.

F irst, the panel concluded that the g overnment f ailed to

m eet its burden of showing irreparable harm absent a s t a y , ex p laining that: 1) the g overnment’s p erceived institutional injury is not “irreparable” because the g overnment may y et vindicate its interests in this litig ation; 2) the g overnm ent’s claim of harm in the form of costs to healthcare providers a nd
tax pay e rs by uninsured immig rants w as not supported by the record, and the court was not required t o accept the P ro cl a mation’s conclusory finding s as true; a nd 3) the harm asserted by the go v ernment is purely monetary , a nd such injury is not normally

considered irreparable.

The panel also concluded that the record amply supported the district c ourt’s conclusion that Plaintiffs woul d s uffer irreparable harm absent preliminary injunc t i v e relief. The panel ex plained that, b ased on finding s that Plaintiffs a nd 60% of visa applica n t s would be unable to satisfy the requirements of the Proclamation, th e d i strict court concluded that the Proclamation would result in prolong ed separation from family members, a facto r t h a t this court has h eld constitutes sufficient irreparable harm.

The panel noted that its analy sis could conclude h e re, g i ven that if a stay applicant cannot show irreparable harm,

a stay may not issue, reg ardl ess of the petitioner’s proof
reg arding the ot h e r stay factors, but concluded that the
contex t of this case sug g ested that the panel should proceed with ex a mining the remaining factors.D O E # 1 V

. T R U M P 4

Second, the panel concluded that the g overnment had not met the hig h s t a ndard of showing a strong likelihood o f

success on the merits. I n doing so, the pan el observed that,

as a motions panel, it must take care not to prejudg e the merits of the a

ppeal, but rath er t o a ssess the posture o f the

case in the contex t of the necessity of a stay pending presentation to a merits p anel. F urther, the panel concluded that t h e g overnment had n ot shown a strong likelihood o f

success on Plaintiffs’ claim that the P r o c lamation conflicts with the Violence Ag ainst W omen A ct’s amendments to the I m m i g ration and N ationality Act (“I NA”), the Affordable Care Act, and the “public charg e” provision of the I N A.

The p anel a lso considered 8 U.S.C. § 1182(f), the section of the I NA that provides that the President may , under c ertain circumstances, “for such a period as he shall d eem necessary , suspend the entry of all aliens o r an y c l a s s of aliens

. . . o r impose on the entry of aliens any r estrictions he may deem to be appropriate.” The panel acknowledg ed that the President is owed broad deference with respect to this provision, but nonetheless concluded at this juncture, fo r t w o reasons, that the Plaintiffs a

re likely to succeed in r efu ting the
g overnment’s contenti o n that § 1182(f) leg itimiz es the Proclamation: 1 ) the Proclamation’s perfunctory time li m i t a tions do not comport with the tex tual limits o f § 1182(f); and 2) § 1 182(f) does n o t p rovide the President with limitless power to deny v isas to immig ran t s b as ed on purely long

- term economic concerns.

Third, the panel concluded that a stay would substantially injure Plaintiffs, as well o ther parties, including Twenty -one states, the District of Columbia, a nd the City of New York, all of which f

iled amici b riefing d e scribing the sig nificant harmD O E # 1 V

. T R U M P 5

they an d other g overnmental entities will suffer if the Proclamation g oes into effect.

F ourth, the panel concluded that the public interest lies with maintaining the status q uo w hile the appeal is pending

, ex p laining that for co u n t l e ss decades, a stable immig r ation
sy stem has provided for f amilies to be united t h roug h a visa
sy stem that did not require purchase of selected i nsurance products. Given the irreparable harm to the Plaintiffs, the lack of irreparable harm to the United States for maintaining the status q uo pending resolut i o n o f this appeal, and the injury to other parties if the Proclamation is i m m e d iately implemented, the p anel concluded that the public interest favors preserving

the status quo

.

F inally

, the panel concluded that the district court did not abuse its discretion in entering a nationwide injunction. The panel noted that, subsequent to the preliminary injunction, the district c ourt c ertified two nationwide subclasses and that the
g overnment had not y et soug ht to appeal that certification. Be c a u se the class here is nationwide, and because a

na tionwide injunction is necessary to provide the class members w ith complete relief, the p a n e l concluded that the
scope of the injunction is appropriate at this juncture,
reg ardless of whether o r n o t i t was when orig inally issued. Thus, the panel concluded that, because the certified class is nationwide and promotes u n iformity in administering federal immig ration law, the district c o urt did not abuse its discretion as to the scope of the injunction.

According ly

, the p anel d enied the motion and directed the Clerk of Court to ex pedite the appeal.D O E # 1 V

. T R U M P 6

Dissenting

, J udg e B ress wrote that the majority ’s d ecisio n is y et the latest e x ample of this court a llowing a universal injunction of a c learly c o n stitutional Ex ecutive B ranch immig ration policy

. F irst, as to success on the merits, J udg e B ress concluded that the majority erred in concluding that the Proclamation is likely u n co nstitutional and that it conflicts with the I

NA a nd other statutes. Second, J udg e B res s concluded that the g overnment established irreparable harm
to the intere s t s t h e Ex ecutive seeks to promote throug h the Proclamation and to the core separation of powers principles that make the Proclamation lawful, and establis h e d harm in the form of costs while the inj unction remains in effect. Third, as to harm to the opposing party , J udge B ress wrote plaintiffs had not estab l i s h e d that their relatives are entitled
to visas but for the P r o clamation. F ourth, J udg e B ress

co n cluded that the public interest strong ly supports stay ing the injunction, stating that the m a j ority added a new, unauthoriz ed stay factor: preservatio n of the status quo. J udg e B ress also wrote that, even if maintenance of the status quo were among the factors that courts consider i n t his
contex t, the actual status quo is a leg al environment in which the Proclamation is authoriz ed.

F inally

, as t o the scope of the injunction, J udg e B ress wrote that the majority ’s reliance on the district court’s recent class certification decision was a concession that the scope o f the injunction was invalid w hen issued. J udg e B ress also

c o ncluded that the problem with many nationwi d e injunctions, a s h e r e, is that they are premised on class certification orders that are themselves infirm. F urther, J udg e B ress wrote that this circuit has co-opted the policy o f promoting uniform immig ration laws as a justificati o n f o r courts issuing nationwide injunctions of Ex ecutive Br a n ch immig ration policies.D O E # 1 V

. T R U M P 7

COUNSEL

Aug ust E. F lentje (arg

ued), Special Counsel; Co u r tney E. Moran, Trial Attorney ; B rian C. W a rd, Senior L itig ation Cou n s e l ; W illiam C. Peachey

, Director; J oseph H. Hunt, Assistant Attorney Gene r a l; Office of I mmig ration L itig ation, United States Department of J ustice, Washing ton, D.C.; for Defendants-Appellants.

Naomi A. I g ra (arg

ued) and B e n

j a min Gillig

, Sidley Austin L L P, San F rancisco, California; E sther Sung (arg u ed) a nd Karen C. Tumlin, J ustice Action Center
, L os Ang eles, California; Nadia H. Dahab and Stephen W

. Manni n g , I nnovation L aw L a

b, Portland, Oreg on; J esse B less, American I mmig rati o n L a wy ers Association, Washing ton, D.C.; K evin M. F ee and Scott D. Ste i n , Sidley A ustin L L P, Chicag o, I llinois; for Plaintiffs-Appellees.

Michael W

. W eaver, McDermott Will & Emery L L P, Chicag o, I llinois, for Amici Curiae 38 Health Policy Ex p erts.

Xavier B ecerra, Attorney General; Michael L

. N e wman, Senior Assistant Attorney General; Kathleen B oerg er s a n d Sarah E. B elton, Supervising Deputy Attorney s General; Srividy a Panchala m , Marissa Malouff, and Nimrod Pitsker Elias, Deputy Attorney s G eneral; Office of the General, Oakland, California; Ellen F

. Rosenblum, Attorney General; B enjam i n Gutman, Solicitor General; Michael C. Kron, Special Counsel; Deanna J

. Chang

, Senior Assistant Attorney G e n e r a l ; Department of J ustice, Portland, Oreg on; Mi c h a e l N

. F euer, Corporation Counsel, Oakland, California ; Dennis Her r e ra, City Attorney
, San F rancisco, California; J ames R. W illiams, County Counsel, Santa Clara, California; Philip J

. W e iser, Attorn ey General, Colorado; Karl A. Racine,D O E # 1 V

. T R U M P 8

Attorney General, District of Columbia; W illiam T on g, Attorney General, Connecticut; K athleen J enning s, Attorney General, Delaware; Clare E

. Connors, Attorn e y G eneral, Hawai‘i; K

wame Raoul, Attorney G e n e r a l, and Mark A

. F lessner, Corporation Counsel, Chicag o, I llinois; Aar o n M. F rey , Attorney General, Maine; Br ian E. F rosh, Attorney General, and Andre M. Davis, City Sol i citor, B altimore, Maryland; Maura Healey , Attorney General, Massachusetts; Dana Nessel, Attorney General, Michig an; Keith E llison, Attorney General

, M i nnesota; Aaron D. F ord, Attorney General, N evada ; Gurbir S. Grewal, Attorney General, a nd Ang elo Auteri, Corporation Counsel

, U nion City

, New J erse y ; Hector B alderas, Attorney General, New Mex ico; L etitia J ames, Attorney General, a n d J ames E. J ohnson, Corporation Cousnel, New York, New York; J oshua H. Stein, Attorney General, and Nick H e r man, Counsel, Carrboro, North Carolina; J osh Shapiro, Attorney General, and Marcel S

. Pratt, City Solicitor, Philadelphia, Pennsy lania; Peter F

. Neronha, Attorney General, Rhode I sla n d; T homas J

. Donovan J r., Attorney General, Vermont; Ma r k R

. Herring

, Attorney General, Virg inia; Robert W

. F erg uso n , A ttorney General, and Peter S. Holmes

, City Attorney
, Seattle, W a shingt o n ; J osh Kaul, A ttorney General, W isconsin; for Amici Curiae States and Cities.

Martha J ane Perkins and Sarah Grusin, N ational Health L aw Prog r am, Carrboro, N orth C ar o lina, for Amici Curiae National Health L aw Prog ram, American P ublic Health Association, and 48 Other Org aniz ations.

L aura McNally and Neil Nandi, L oeb & L oeb L L P, Chicag o, I llinois; Peter S. Marg uli es , B ristol, Rhode I sland; Shoba S i v a p r a s a d Wa d

h ia, U niversity Park, Pennsy lvania; for Amici Curiae I mmig ration L aw Professors.D O E # 1 V

. T R U M P 9

Nicholas L evenhag en a

nd Eliz abeth Z irker, Disability Rig hts California, San Dieg o, Califor n i a , f o r Amici Curiae Disability Rig hts California, Center for Public Repres e ntation, Disability Rig h ts Advocates, Disability Rig hts Educati o n & Defense F und, Disability Rig hts O reg on, National Council on I ndependent L iving

, National Disability Rig hts Network, a nd The Arc.

Daniel B

. Asimov, Arnold & Porter Kay e Scholer L L P, San F r a ncisco, California; J ohn A. F reedman and J eremy Karpatkin, Arnold & Porter Kay e Scholer L L P, Washing ton, D.C.; for Amici Curiae CASA, Center for Constitution al Rig hts, Make the Road New Y ork, and N ational I mmig r ation L aw Center.

Shery l G arko, Orrick H erring to n & Sutcliffe L L P, B oston, Massachusetts, for A mici Curiae American Medical Association, O reg on Medical Association, and A m e rican Academy of Pediatrics.D O E # 1 V

. T R U M P 10

ORDER

THOMAS, Chief J udg e :

I n this case, w e consider the g overnment’s motion to stay the district court’s preliminary injunction enjoining a Presidential Proc lamation restricting family -sponsored immig rants from entering the United States without acquiring specified hea l th insurance. W e deny the motion. W e direct the Clerk of Court to ex pedite the appeal.

I

The I mmi gr a t i on and Nationality Act (“I NA”), Pub. L

. No. 8 2-414, 66 Stat. 1 63 (1952), a llows noncitiz ens to a pply for an immig rant visa to permit them to permanently reside in the U nited States. 8 U.S.C. §§ 1101 ( a ) ( 1 5), 1181(a), 1182(a)(7), 1201(a). B efore an individual ma y apply f or an immig rant v isa, a prospective employ er or a family member who is a United States citiz en or lawfu l permanent resident
must f ile a sponsorship petition on beha l f o f the individual. Id. §§ 1151(a)–(b), 1153. The pe tition is submitted to a nd approved by U .S. Citi z e n s hip and I mmig r ation Services, which forwards the approved petition to the N a tional Visa Center. See id. § 1201. The imm i grant must then complete visa processing and schedule an in-person interview before a consular officer at a U.S. embassy o r consulat e. S ee id. § 1202(a), (e); 22 C.F .R. § 42.62. The consular officer then makes a determination 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). I f an immig r ant falls into one of the t e n categ ories enumerated in 8 U .S.C. § 1182(a), they a re d eemed inelig ible for a visa and inelig ible for admission into the United States.D O E # 1 V

. T R U M P 11

Currently

, insured status is not one of the c riteria for elig ibility

. See 8 U.S.C. § 1182(a).

On October 4, 2019, th e P resident issued the Proclamation in dispute, Proclamation No. 9945, entitled Suspension o

f Entry o f Immigrants W

ho W ill Financially Burden the United States Healthcare S y stem, in Order to Protect the Availability of Healthcare B e n e

f its for Americans
, 84 F ed. Reg

. 53,991. T he Proclamation identified the perceived problem of uncompensated medical ex pen s e s i n the United States, stating

, without c itation to any s o u r c e, “data

s h o w that lawful immig r ants are about three times mo r e likely than United States citiz e ns t o l a c k health insurance.” To address this issue, the Procla mation barred, with some

ex c e ptions, individuals seeking to enter the United States on

an immig r ant visa from entering the United States unless they could demonstrate that they will b e c o vered by c ertain approved health insurance w ithin 30 day s of e ntry or that they have the resources to cover foreseeable h ealthcare costs. Id. at 53,992.

Th e P r oclamation identified a narrow definition of what constitutes “an approved health insurance plan,” namely :

(i) an employ er-spons o red plan, including a retiree plan, association health plan, a nd
coverag e provided by the Consolidated Omnibus B udg et Reconciliation Act of 1985;

(ii) an unsubsidiz e d health plan offered in the individual market within a State;

(iii) a short-term limite d d u ration 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 d ay s—or u n til the beg inning of planned,

ex tended travel outside the United States;

(iv) a catastrophic plan;

(v) a family

member’s plan;

(vi) a medical p lan under chapter 55 of ti tle 1 0
, United States Code, including c overag e under the TRI CARE prog r a m;

(vii ) a visitor health insurance plan that provides adequat e c o verag e for medical care for a mini m u m of 364 day s—or until the beg inning of planned, ex tended travel outside the United States;

(viii) a med ical p lan under the Medicare
prog r am; or

(ix ) any other health plan that provi d e s adequate c o v e rag e f

or medical care a s determined by the Secretary o f Health a nd Human Services or his desig nee.

Id.

B y the terms of the Proclamation, Medi c a i d does not constitute “a pproved health insurance” for individuals over the ag e of 18. Id.

The President directed that the Proclam a t i o n become effective at 12:01 a.m. e a stern day lig ht time on November 3, 2019. On October 30, Plaint i f f s f i led this a ction. TheD O E # 1 V

. T R U M P 13

i n d ividual Plaintiffs are seven U.S. citiz ens who a r e sponsoring f

a m i ly members for immig r ant visas and whose applicant family members have successfully comp leted the
tr a d i t i o nal steps for o btaining an immig rant visa, but would be barred from entering the United States und e r t h e Proclamation. The org ani z a t ional Plaintiff is the L atino Action N etwork, a n org aniz ation that provides prog rams aimed at educating and e m powering L atinos in Multnomah County
, O r e gon. The L atino Action Network a lso provides services to navig ate the immig rant visa process.

On November 2
, 2 019, the district c o u rt issued a temporary restrai n i n g o r d er precluding the Proclamation from taking effect. See Doe # 1 v. Tr ump , 414 F

. Supp.3d 1307 (D. Or. 2019). On November 2 6, before the ex p iration of the temporary restraining order, t h e d i strict 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 n j u n c t i o n p r o h i b i t i n g implementation of the Proclamation. Doe v. Trump
, 418 F

. Supp. 3 d 573, 604 (D. Or. 2 019). I n d oing s o , t h e district
court applied the familiar W inter factors, concluding that the Plaintiffs h ad shown that ( 1) they we r e likely to succeed on the merits; ( 2) they were likely to s u ffer irreparable harm in the absence of preliminary relief; (3) the balance o f equities tipped in their f

avor; and (4) that a preliminary injunction was in the p u b lic interest. Id. at 579 (citing W inter v. Nat. Res. Defense Council, Inc.
, 555 U.S. 7
, 2 2 ( 2008)). T he United S t a tes filed this emerg e n cy motion to stay the district cou r t order pending

appeal.

W h ile this stay motion was pending

, on April 7, 2020, the district court certified the following two subclasses:

The U.S. P etitioner Subclass : I ndividuals in the United States who currently have o r willD O E # 1 V

. T R U M P 14

have an appr o v e d o r pending petition to the United States g overnment to sponsor a noncitiz en f

amily member f

or an immig rant visa; and whose sponsored family member is subject t o the Proclamation and unable to demonstrate to a consular officer' s satisfaction that h e or she “ w i l l be covered by approved health insurance” within 30 day s after entry o r will be able “to pay for reasonably foreseeable medical costs;” and

Th e Visa Applicant Subclass : I ndividuals who are f

oreig n nationals who (I ) have applied for or will s o o n a pply to the United States g overnment for an immig rant visa; (i i ) a re otherwise e lig ible to b e g ranted the visa; b ut (iii) are subject to the Proclamation and una ble to demonstrate to the satisfaction of a consular officer that they “will be covered by approved health insurance” within 30 day s after entry or will be able “to pa y for reasonably

foreseeable medical costs.”

I I

A r equest for a stay p e n d i n g appeal is committed to the

e x ercise of judicial d iscretion. Virginian Ry. Co. v

. Unit e d St a t e s , 272 U.S. 658, 672 (1926). A party requesting a stay pending appeal “b ears the b urden of showing that the circumstances justify an ex ercise of that discretion.” Nken v

. Holder

, 556 U .S. 418, 433–34 (2009). I n c o nsidering whether to ex ercise o ur discretion in g ranting the Government’s motion to stay the preliminary injunction, we apply the familiar standard set forth by the Supreme Court inD O E # 1 V

. T R U M P 15

Nken

, namely : (1) whether the Government has made a strong showin g of the likelihood of success on the merits; (2) w hether the appellants will be irreparab l y i n jured absent

a stay ; ( 3) whether a stay will substantially injure o t her parties; and (4) where the public interest lies. Id. a t 426. “The first two f

actors

. . . are the most critical.” Id

. at 434. W e consider the last two factors if the first two f act o r s a re satisfied. Id. at 435. W e review the sco pe o f the district court’s p r eliminary injunction for abuse o f d is cretion. California v

. A zar , 911 F .3d 558
, 568 (9th Cir. 2018), cert. de n i e d sub nom. Little Sisters of the Poor J eanne Jugan Residence v. California , 139 S. Ct. 2716 (2019).

I I I

A

Nken instructed “that if the petition has not made a c ertain threshold showing reg arding irreparable harm

. . . then a stay may not issue, reg ardless of the petitioner’s p r o of reg arding the other stay factors.” Leiva-Perez v. Holder

, 640 F .3d 962, 96 5 ( 9th Cir. 2011) (per curium) (citing Nken

, 5 56 U.S.
at 433–34). W e there f

ore beg in our Nken analy sis with consideration of irreparable harm. Cf. Al Otro Lado v. W olf

, 952 F .3d 999, 100 7 ( 9 t h Cir. 2 020) (listing the Nken f actors and ex plaining

, “W e first consider the g overnment’s showing

on irreparable harm, then discuss the likelihood o f success on the merits under the sliding scale approach”).

The g overnment has failed to meet its burden of showing irreparable harm. I n the contex t o f a stay req u e s t , “ s imply showing some possibility of irre p a r a ble injury ” is i n s u f f icient. Nken

, 5 56 U.S. at 434 (citation and internal quotation marks omitted). Rather, at this juncture, theD O E # 1 V

. T R U M P 16

g overnment h a s the burden of showing that irreparable injury is likely to occur du r i n g t h e period b efore the a ppeal is decided. Leiva-Perez
, 6 40 F .3d a t 968. The g overnment did not satisfy

its burden.

The g overnment first arg u es that it will suffer irreparable harm because the preliminary injunction p revents “th e President from taking a c tion effe c t u a t ing an Act o f Cong r ess.” B ut the question of whether the Proclamation conflicts with cong ression a l l y set qualifications for im m i gr ant visas or ex ceeds the President’s authority to chang e these qualifications is at the core of this dispute, to be resolved a t the merits stag e of thi s c as e

. Thus, the harm o f

s uch a perceived institutional injury is not “irreparable

, ” because the g overnment “may y e t pursue and v indicate its i n t erests in the full course o f this litig ation.” W ashington v. Trump
, 847 F

. 3d 1 151, 1168 (9th C i r. 2 0 1 7) (per curium), cert. denied sub nom. Golden v. W ashington , 138 S. Ct. 448 ( 2 0 1 7 )

. I ndeed, if we were to adopt the g overnment’s assertion that the irreparable harm standard is satisfied by the fact of ex e cutive action alone, no act of the ex ecutive b ranch asserted to be inconsistent w ith a leg islative enactment could be the subject of a p reliminary injunction. That cannot be so.

The g overnment nex t a

r g ues that it will be irreparably harmed d uring the pend e n c y of the a ppeal because of the alleg ed substantial c ost to healthcare providers and tax p ay ers by uninsured immig rants. F or s u pport, the g overnment simply cites to the statement in the Proclama t i o n that recent immig rants are three times more likely than citiz ens t o lack health insurance. There is no citation in the Proclamation for this sta t i s tic, nor is one to be found any where in the record. Nor could the g o vernment provide any source for thisD O E # 1 V

. T R U M P 17

a ssertion in briefing or at o ral arg ument. A n d t h e Proclamation contains no further cost quantification.

B y contrast, the Plaintiffs placed into the record evidence that uninsured immig rants represent o n ly 0.3% of American adults a nd o nly 2.9% o f u ninsured adults. T h e r e cord evidence also shows that uninsured immig rants use less than 0.06% o f total American medical resources and only 0.08% of emerg ency service ex penditures. These statistics include illeg al as well as leg al immig rants, so the numbers pertinent here may be considerably lower. The record further indicates that im m i g rants are more likely to represent “ favorable insurance ri s k [ s ] ” in Affordable Care Act (ACA) marketplaces b ecause they tend to be relatively healthier than the normal insured population a nd use f ewer healthcare g oods and services. F or instance, in California, immig rants who a re insured throug h an A CA-compliant plan (which, if subsidiz ed, are not p e r

mitted under the Proclamation) have 10% lower medical claims than citiz en enrollees in the same plans. As a result o f ex cluding low-risk c o n s u m ers, the overall health of the risk pool will decrease, resulting in increased premiums for all consumers u sing state marketplaces.

The g overnment c laims that we a re preclud e d fr om reviewing the Proclamation’s conclusory finding s and must accept them as true. This assertion runs a foul of Nken

, which places the burden o n the g overnment, and instructs us only to

ex e r cise our discretion to enter a stay w hen irreparable harm is probable, not merely possible. 556 U.S. at 434. The
g overnment c annot meet this b urden by submitting conclusory factual a ssertions and speculative arg uments that

are unsupported in the record. See Azar
, 911 F .3d at 581. I n this respect, this Proclamation’s finding s stand in s t a r kD O E # 1 V

. T R U M P 18

contrast to the proclamation’s finding s in Trump v. Hawaii
, 1 38 S. Ct. 2392 (2018). That case involved a proclamati o n that set forth “ex tensive finding s,” which the President f ound after orderi n g t he relevant a g encies to “conduct a comprehensive evaluation” o f the countries affected b y the proclamation, and the p roclamation then tailored its finding s to the ag e ncies’ recommendations. See id. at 2408. Thus, in assessing whether the g overnment has met i t s b u rden, we must ex amine and review the entire record, not simply rely on

one unsupported conclusory statement. S e e W a shington

, 847 F .3d at 1162–63.

Even if w e credit the Proclamation’s assertions, t he
g overnment has not demonstrated that the healthcare sy stem will be irreparably burdened while this app eal is p ending

. The record evidence shows t h at m any of the immig rants affected b y the Proclamation could obtain some form o f insurance that would reduce their already minimal contribution to healthcare costs, b ut t h e se immig rants a re nonetheless inadmissible under the Proclamation because they cannot obtain a

n “approved” health insurance plan o r cannot obtain a plan within the 30-day deadline. I n short, the record evidence shows that the impact of u ninsu r e d i mmig rants on uncompensated healthcare costs is minima l

, and that many of the affected immig r ants could obtain health insurance if permitted to look b ey o n d the plans a nd 30-day limitation in the Proclam a t i o n. The g overnment has submitted no evidence disputing these points.

F urther, the har m a s s erted by the g overnment is purely monetary , and “‘monetary in j u ry is not normally considered irreparable.’” hiQ Labs, I nc. 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

1 202 ( 9th Cir. 1980)). I n addition, monetary injury to th i r d parties, suc h a s h e alth care providers, or to the economy in
g eneral provides an even weaker justification for a finding o f “irreparable harm.” Af

ter all, the Nken irreparable harm standard is “whether the applicant will be irreparably injured absent a stay .” 556 U.S. at 426 (emphasis added).

B y contrast, the district court concluded that the evidence demonstrated that Plaintiffs would suffer irrepar a b l e harm absent preliminary injunctive relief and that the g overnment

was u nlikely to succeed in showing otherwise. D o e , 4 18 F

. Supp. 3d at 599. T he Plaintiffs submitted evidence that all

seven individual Plaintiffs are either u nable t o a fford an “approved” plan, unable to add the immig rant family member
to an e x isting employ er-sponsored plan, unable to acquire an approved plan w ithin the 30

- d ay d eadline, or lack the

resources to demonstrate they could i ndependently pay for foreseeable medical costs. See id. at 584–86.

The district court concluded that the Proclamation likely would neg atively affect approx imately 6 0% of all immig rant visa a pplicants. Id. a t 597. Plaintiffs aver, c i t i n g d ata from the U nited States Census B u reau, that approx imately 375,000 immig rants each y ear—primarily those seekin g to enter the United States on family -s p o n sored petitions—would be affected, a n d potentially precluded from obtaining an immig rant visa, by

the Proclamation.

B a sed on the evidence in the record, t h e district court found that the approved insurance plans delineate d in the Proclamation were “ l e ga lly or practically unavailable to intending

, or prospective, immig rants.” Id. at 583. The district court f

ound that employ er-based plans often had a waiting period that ex ceeded the Proclamation’s 30-dayD O E # 1 V

. T R U M P 20

deadline and hig hlig hted the fact that the prohibition ag ainst obtaining su

b s i d iz ed insurance under the Affordable Care A ct rendered that market, f

or the most part, inacce s s ible to

ar r iving immig rants. Id. I t also hig hlig hted the fact that Short T erm L imited Duration I n surance plans, which were

a m ong the Proclamation’s “approved” p lans, are banned in Cal i f o r nia, and that Oreg o n’s c o ntract term requirements make such plans inelig ible under the Proclamation there. Id. The d istrict court underscored that r eliance on Medicaid for
any immig r ant over the ag e o f 1 8 is prohibited b y the Proclamation.

As to the other “ approved” plans, the district co u rt

ex p lained that:

F amily -member p lans are only available to applicants y o ung e r than 27 y ears old. Visitor’s insurance plans a r e desig ned for short-term visits

, have caps on individual
coverag e and lifetime benefits, and often

ex c lude preex isting conditions, mental health conditions, and maternity c a re. Such plans often result in sig nificant u ncompensated

care. People who r eceive insuranc e throug h
state Medicaid prog rams may not b e a b l e to add their family members to their plan. Catastrophic plans are only available to pe o p le who are already leg ally present. Even then, o n l y people under 30 (or who obtain a special hardship ex emption) are elig ible to enroll. T R I CARE is available only to members o f the United States military a n d their close relatives. Medicare is perhaps the least feasible option—o n ly intending [ that]D O E # 1 V

. T R U M P 21

i mmig rants older than 65 who have already been living continuously in the United States for five y ears may

enroll.

Doe , 418 F . Supp. 3d at 583–84.

T he d istrict court c o ncluded, based on the re c o r d evidence, that the Proclama t i on would result in prolong ed separation from family members, a factor that w e h ave h eld constitutes sufficient irreparable harm. Hawai’i v. Trump
, 878 F .3d 662, 699 (9th Cir. 20 1 7 )

, rev’d on o ther grounds and remanded

, 138 S. Ct. 2392 (2018); see also W a shington

, 8 4 7 F .3d at 1 168–69. F or ex ample, the district court f ound that one of the Plaintiffs risks h a v i n g his wife’s I -601A

w aiver automatically revoked if she is denied a visa at h e r interview. See Doe
, 418 F

. Supp. 3d at 59 8

. T h e district

c ourt further found that Plaintiffs who have already secu r e d I -601A waivers throug h their f amily member sponsors had a hig h risk o f being forced to leave the Uni t e d S t a t e s for an indefinite period of time. Id

. B ased on the record, the district
court determined that the Plaintiffs w er e unlikely to acquire one of the “approved health insurance” plans set forth in the Proclamation, but were o therwi s e likely qualified for entry under § 1182(a). Id

. I n sum, without reciting a ll of the record e vidence, the record amply supported the district court’s c onclusion that the Plaintiffs would suffer irreparable harm.

Ultimately

, the go v e r n ment has f a iled to sustain its burden of establishing that it would suffer irrepara b l e h a r m absent a stay of the preliminary injunction pending a h earing by a merits panel. The r ecord supports the district court’s conclusion that the Plaintiffs would suffer irreparable harm absent a preliminary

injunction.D O E # 1 V

. T R U M P 22

B

Our Nken analy si s c o u l d conclude here, g iven that if a stay applicant cannot show irreparable harm, “a stay may not issue, reg ardless of the petitioner’s p roof reg arding the other stay f actors.” Leiva- P e r e

z , 640 F .3d at 965. However, the
contex t of this case sug g e sts that we should proceed with

ex a mining the remaining Nken factors.

The second most i m p o r t ant Nken factor is whether the applicant has made a strong showing of the likelihood o f

success on the mer i t s

. S ee N ken

, 556 U.S. at 4 26. As a

m o t i o n s panel, we must take care not to prejudg e the merits of the a ppeal, but r ather to a ssess the postur e o f t h e case in the contex t of the necessity of a stay p e n ding presentation to

a merits panel. See W

ashington

, 847 F .3d at 1168. Thus, we will not address the merits in detail, but only as necessary to apply the Nken factors. Here, the g overnment has not met the hig h standard of showing a strong likel i h o o d of success on the merits.

1

The g overnment has not shown that it has a s t r ong likelihood of success on the Plaintiffs’ claim that the Proclamation conflicts with the Violence A g ainst W omen Act’s (“VAW A”) amendments t o the I NA. See 8 U .S.C. § 1182(a)(4)(E). I ndeed, o n t his claim the g overnment has made no showing at all.

The VAW A amendments e x empted from the public charg e ex clusion certain immig rant relatives of vict ims of violent crimes, such a s f elony assault, sex ual assault, incest, kidnap p ing

, or h uman trafficking

. 8 U .S.C.D O E # 1 V

. T R U M P 23

§ 1101(a)(15)(U)(iii). T h ese a m endments also ex e mpted victim s o f b attering and ex treme cruelty

. 8 U .S.C. § 1154( a ) ( 1)(A)(iii)–(vi). Cong ress ex pressly p r ovided that these immig rants—includin g t he spouses, c hildren, a nd parents of violent crime victims—were categ orically e x empt from the financial burden or “public c harg e” provisions of the I NA. Id.

The Proclamation m a k e s n o such ex emption. Rather, it effectively prohibits family members of violent crime v ictims from obtaining visas and joining their families in the United States by declaring them to be financi al burdens a nd inelig ible, d irectly contradicting VAW A. This preclusion
contravenes the well-settled p rinciple that the President ’s
powers a re ex ecutive, not leg islat ive, in nature. “[ T] he President’s power to see that the laws are faithfully ex ecuted refutes the idea that he is to be a lawma k e r

. ” Y o ungstown Sheet & Tube Co. v

. S

awyer , 343 U .S. 579, 587 ( 1952). The President’s a

uthority to act “must stem either from an act o f Cong r ess or from the Constitution itself.” Id. at 585

. He re, Cong r ess has enacted the VAW A amendments specifically to enable the subject immig rants to q ualify for admission a

nd visas, see 8 U.S.C. § 1154( a ) ( 1 ) ( A)(iii)–(vi), and “[ t] here is

no provision in the Constitution that authoriz es the President
to enact , t o amend, or to repeal statutes.” Clinton v. City of New Y ork , 524 U.S. 417, 438 (1998).

The g overnment does not respo n d t o t he merits of this challeng e; it only sug g ests that the statutory conflict does not affect many people. Of course, this considerat i o n is irrelevant to the determination o f whether the g overnment has demonstrated a strong likelihood of success of prevailing on th e V A W A issue. B y contrast, Plaintiffs point out that immig rant family members of vi ct i m s of violent crimesD O E # 1 V

. T R U M P 24

comprise at least 20 c ateg ories of noncitiz ens seeking to enter the United States with an immig rant visa. S ee 22 C.F .R. § 42.11.

At this stag e, the g overnment has f ailed to make a strong showing that it is likely to prevail on Plaintiffs’ c laim that the Proclamation conf

l icts w ith the Violence Ag ainst W omen Act.

2

The g overnment has also n ot sustai n ed its burden o f showing that it has a strong likelihood of success of prevailing on Plaintiffs’ claim that the Proclamation violates the ACA. See 42 U.S.C. §§ 1 8021 to 1 8024, 18031; see also 26 U.S.C. § 36B

. The g ove rnment has not submitted any evidence to indicate that it is likely to succeed on this c laim.

I n enacting the ACA, Cong ress authoriz ed the creation o f state-based markets that present consumers with multiple insurance coverag e choices so that c onsumers c a n compare and purchase plans in an e ffort to “increase the number o f Americans covered by health insurance a nd decrease the cost of health care.” Nat’l Fed’n of Indep. Bus. v. Sebelius

, 132 S. Ct. 2 566, 2 580 (2012). To purchase insurance in a state’s marketplace, an individual must prove that they reside in the United States o r a territory thereof and that they are “lawfully
presen t .” 42 U.S.C. § 18032(f)(1)(A)(ii); 45 C.F .R. § 155.305(a)(1)–(3). To incentivize t he purchase of insurance plans throug h ACA marketplaces, Cong ress pro vided premium tax credits t o offset the costs of purchasing an insurance plan and ex pressly ex tended the availabil i t y o f those credits to any tax p ay er 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 Cong ress’s clear intent to ex tend these tax credits
to leg al immig rants, t h e Proclamation ex plicitly ex cludes such “subsidiz ed plans” from the list of approv ed h ealth insurance plans. As a r e s u lt, an immig rant attempting to leg ally enter the United S t a t es will not have access to ACA
tax credits as Cong ress intended. Compare 84 F ed. R e g. at 53,992 to 26 U.S.C. § 36B (c)(1)(B ) (ii ). And, unless an immig rant succeeds in searching for, finding

, and p ay ing for elig ible insurance—which is u n likely —they will not be able
to leg ally immig rate, even if otherwise elig ible u n d e r the criteria Cong r ess established.

Additionally

, the g overnment’s contention that an immig rant may satisfy the Proclamation by purchasing a p lan that does not include tax credits (i.e., an “unsubsidiz ed” plan) under the ACA is, in practice, nearly impossible, e ven thoug h

su c h p l an s a r e t e ch n i c a l l y “ ap p r o v e d ” u n d e r the Proclamation. See 84 F e d

. Reg

. a t 5 3
, 9 9 2. A n immig rant may only participate in the ACA marketplace a fter they have established both their residency and lawful presence, but the immig rant cannot reside in and be leg ally pre s e nt in the United States under the Proclamation w ithout first purchasing “approved” health insurance. See 42 U .S.C. § 18032(f)(1)(A)(ii); 45 C.F .R. § 155.305(a ) ( 1 )

– (3). The immig rant is consequently left in a Catch-22 : t h ey cannot obtain an “a

p p r oved” unsubsidiz ed insurance plan u nless they have b een leg ally admitted, but they cannot be leg ally admitted unless they h ave o btained an “approved” insurance plan. T hus, the Proclamation bars immig rants from accessing subsidiz ed insurance plans despite Cong ress’s ex press intent
to e x tend those plans to leg al immig rants, 2 6 U .S.C. § 3 6 B(c)(1)(B )(ii), and it essentially prohibits immig rants from obtaining an unsubsidiz ed plan despite such plans beingD O E # 1 V

. T R U M P 26

“approved” u nder the Proclamation. The g overnment has not seriously contested this claim.

I n sum, g iven that the evidence in the record supp o r ts a conclusion that the Proclamation prevents otherwise elig ible immig rants from accessing either subsidiz ed or unsubsidiz ed health insurance plans as Cong ress in t ended and instead requires them to obtain—if they can—different, lower quality insurance to be elig ible for a visa, we conclude that the
g overnment has not shown that it is likely to succeed on this claim.

3

The g overnment has als o not sustained its burden o f showing that it has a stron g likelihood of success o f prevailing on Plaintiffs’ claims that the Proclamation violates the I N A. Althoug h we leave a comple t e a n a l y sis of these claims to the merits panel, several of these claims are worthy of discussion at this stag e , in lig ht of the serious questions on the merits Plaintiffs raise. See All. for the W ild Rockies v

. Cottrell , 632 F .3d 1127, 1137 (9th Cir. 2011).

F irst, the Proclamation is c o nnect e d in its avowed purpose to the I NA’s “public charg e” p rovision. That provision states that “ [ a] n y alien who, in the o pinion o f the consular officer at the tim e o f application for a visa, o r in the o pinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charg e is i n admissible.” 8 U.S.C. § 1182(a)(4)(B )(i). The
statute lists various factors that the consular office can consider. Health insurance is not among them.D O E # 1 V

. T R U M P 27

More importantly

, the statute requires that all of the

s pecified factors should be c onsidered in determini n g w h e t h e r

an applicant should be deemed a financial b u r d e n a nd

c onsequently inadmissible. 8 U.S.C. § 1182(a)(4)(B ). T h e Proclamation eviscerates the statutory scheme by making the acquisition of desig nated f o rms of health insurance t h e sole

con s i deration of whether an applicant should b e ex cluded f r om consideration for a f amily v isa. S

ee 8 4 F ed. R e g. at 53,992. Any arg ument contendin g t h a t the Proclamation complements the public charg e statutory scheme is therefore incorrect.

Reg arding § 1182(a)(4)(B ), w e h ave recog niz ed that this provision establishes “factors [ that] are to b e considered ‘at

a minimum,’” but “ [o] ther factors may be considered as well,
g iving officia l s considerable d iscretion in their decisions.” City & Cty. of San Francisco v. USCIS
, 944 F .3d 773, 972 (9th Cir. 2019). The Proclamation does n o t permit any

ex e r cise of official discretion, as t h e e n u m e r a t e d § 1182(a)(4)(B ) factors do, but instead i m p o ses an absolute bar on the entry of uninsured immig rants. F or instance, o ne of the individual Plaintiffs h as submitted evidence that he could add his wife to his employ er’s h ealthcare p lan once she obtained a social s e c urity card, but social security cards a re

no t m ailed quickly enoug h to meet the 30-day deadline mandated by the Proclamation. Even in this situation, the consular officer has no dis cretion to consider that the Plaintiff’s wife can obtain an a pproved health insurance p lan

a n d that this factor would weig h a g ainst finding that she i s likely to b ecome a public charg e under § 1 182(a)(4)(B ). I nstead the officer must find that she is inadmissible because she cannot o btain this insurance within 3 0 day s. W ithout the Proclamation, the officer would have t h e d iscretion to consider her admissible, as § 1182(a)(4)(B ) intended. I n sum,D O E # 1 V

. T R U M P 28

the Proclamation’s h e alth insurance r equirement 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 r a i s e serious questions r elated to § 1182(f) of the I

NA. T h is section of the I NA provides that, when “the Presid e n t finds that the entry of any aliens or any class o f aliens into the United States would be detrimental to th e i n terests o f the United States,” then he may , “for such a period as h e s hall deem necessary , suspend the entry of all aliens or any class of aliens

. . . or impose on t h e entry o f aliens any r estrictions h e may deem to be appropriate.” 8 U.S.C. § 1182(f). Section 1 182(f) “ex u des deference to the President.” Hawaii
, 138 S

. C t

. at 2408. W e acknowledg e this broad deferenc e , b u t nonetheless conclude at this ju n c t u r e , for two reasons, that the Plaintiffs are likely to succeed in refuting the g overnment’s contention that § 1182(f) leg itimiz es t h e P r o c l a m a t i o n : f i rst, the Proclamation’s perfunctory time limitat i o ns do not comport with the tex tual limits of § 1182(f); a n d second, § 1182(f) does not p rovide the President with l imitless power to deny visas to immigr a n t s based on purely long -term economic

concerns.

W e first consider whether the Proclamation comports with the temporal limitations of § 1182(f) established by the

s t a tute itself: that the President has the power to “suspen d ” the entran c e o f aliens “for such period as he shall deem
necessary .”

“[ A] s with any statute, ‘we look f irst to its lang uag e , g iv i ng the words used their o rdinary meaning .’” Roberts v

. Se a

- L a n d Servs., Inc.
, 566 U.S. 93, 100 (2012) (quoting I n galls Shipbuilding Inc. v

. D ir., Office of W orkers’ Co m

p

.D O E # 1 V

. T R U M P 29

Progs.
, 5 1 9 U .S. 2 48 (1997)). Ordinarily

, to “suspend”

means to “ca u s e to stop temporarily ,” Suspend

, M E R R I A M

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

N A R Y (2019), or “connotes a deferral till later,” Hawaii
, 138 S. Ct. a t 2 4 0 9 ( citation omitted). The P r oclamation summarily states that the entrance of “a l i e n s who will burden the healthcare sy stem is hereby suspended,” but the mere use of the word “suspend” does not remedy the fact that the Proclamation omits a n y indication that the health insurance requirement is temporary

. See 8 4 F e d. Reg

. a t 5 3,992. I nstead, the Proclamation ties the putat i v e suspension to the problem o f u n c o m p e n s a t e d healthcare costs,

a speculative arg ument g iven that this probl em has no apparent resolution under the current healthcare sy stem.

B y the Proclamation’s own terms, it d oes not have an endpoint. Rather, it o nly requires periodic status r e ports a nd merely provides that if the Secretary of State, after consulting other officials, “ determines that cir c u m stances no long er warrant the c ontinued effectiveness o f the suspension

. . . the Secretary shall immediately advise the President.” See 84 F ed. Reg

. a t 53,993. T h ere is n o req u i r em e n t that the President act on the advice. Althoug h § 1 1 8 2 ( f ) does not require an ex plicit d

uration, see Hawaii
, 138 S. Ct. at 2410, the lack of an ex pl icit time limitation is problematic in lig ht of the absence of any lang uag e that sug g ests even an implicit limitation, such as a limit measured by the o c c u r rence o f

some future event or condition. The Proclamat i o n h e r e is therefore disti n gu i s hable from the Proclamation at issue in Hawaii
, which “ma[ de] c lear that its ‘conditional restrictions’ will remain in force only so long as necessary to ‘address’ the identified ‘inadequacie s and risks’ w ithin the covered nations.” Id. To achieve its g oal, the H a w a i i P roclamation established “an ong oing process to eng ag e covered nations and assess every 180 d a y s wh e t h er the entry r e strictionsD O E # 1 V

. T R U M P 30

should b e m o dified or terminated,” and the Proclamation

s tated that it aimed to “‘relax [ ] or remove[ ] ’ the ent r y restrictions ‘as soon as possible.’” Id.

B y contrast, the Proclamation here includes no sug g estion that the health insurance r equirement is temporally limited b y any thing

, including the o verall reduction in uncomp e n sated healthcare costs. Althoug h the Secretary of State will r eview the effective n e s s o f the p rog ram in 180 day s and, from then
on, on a y early basi s, see 84 F ed. Reg

. at 53,993, there is no lang uag e that sug g ests that the requirement will be removed “as soon as possible,” or when a n y s pecified circumstance chang es. Cf. H

awaii
, 138 S. Ct. at 2410. F urthermore, unlike the Proclamation i n Hawaii
, which was promulg ated a fter DHS and other ag encies “conducted a c o mprehensive evaluation of every sing le cou n t ry ’s c ompliance with the information and risk assessment b aseline,” id. at 2408, the Proclamation here was not issued followi ng any sort o f comprehensi v e ag ency review supported by data-driven analy sis. I n d eed, the g overnment has submitted no evidence
to sug g e st that the health insurance r e q u i r ement w ill reduce uncompensated h ealthcare costs in such a w a y a s to render the limitation feasibly

temporary

.

F or ex ample, the Proclamation states that uncompensated healthcare costs have “ex ceeded $35 billion in each of the last 10 y ear s , ” a n d sug g ests that this fig ure could be lowered b y refusing to admit immig r ants w h o lack approved health insurance. See 84 F ed. Reg

. at 53,991. H owever, data in the record indicates that uncomp e n s a t ed health care costs haveD O E # 1 V

. T R U M P 31

remained around $35 b illion since at le a st 2001. 1 As stated above, we credit the Plaintiffs’ evidence th a t uninsured immig rants contribute minimally to this amount. T hese facts call into question whether the Proclamation is consistent with the direction to “suspend” immig ra t i o n for so long a s necessary to effectuat e the g overnment’s g oal of decreasing uncompensated healthcare costs.

The Proclamation’s long e vity is conting ent u pon the diminishment of uncompensated healthcare costs—costs that have remained stable for at least two decades

— w h ich it purports to reduce by restricting entry of a c l a ss o f immig rants that has been shown not to sig n ifi c a n t ly affect that f ig ure, and whose dollar impact on u ncompensated costs will likely r emain static, whatever happens to uncompensated
costs in g e neral. 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 uncompensated care costs w ill remain hig h, and the p erceived “necessity

” of the Proclamation could ther e f o r e continue in
p erpetuity

. Cf. Hawaii
, 138 S. Ct. at 2410 (“[ W ]hen a president suspends entry

in response to a diplomatic dispute

or policy c oncern, he may link the duration o f those restrictions, implicitly or e x plici t l y , t o the resolution of the trig g ering conditi on.”). I n short, the Proclamation’s failure
to e x plicitly o r implicitly establish any time constraints on the health insurance prohibition raises serious questions as to

1 S e e I NST I T U T E OF M E DI CI NE (US) C OMMI T T E E ON T HE C ONSE QU E NCE S OF U NI N SURA NCE , H I DDE N C OST S , V A L UE S L O ST 4 7 (2 0 0 3) (av ailab le at h ttp s://w w w .n cb i.n lm .n ih .g o v / b oo k s /NB K2 21 6 62 /);

see a lso A m e rican Ho sp ital A sso ciatio n , Un co m p en sated Ho sp ital Care Co st Fact Sh eet 3 (J an u ary 2 01 9 ) (h ttp s://w w w

. a h a

. o rg /sy stem

/ f iles/2 0 19

- 0 1 / u n c o m

p e ns a t e d

- c a r e -fa c t -s he e t -j a n -2 0 1 9

. p d f) ( e s t a b l i s h i n g t h a t

u n co m p en sated h ealth care co sts t o taled ap p ro x im ately $ 2 1.5 b illio n in 2 0 0 1 , w h ich is ro u g h ly

$ 32 b illio n

w h en ad j u sted f or in f latio n ).D O E # 1 V

. T R U M P 32

whether the Proclamation is a “suspension” according to the plain meaning of the term in § 1182(f).

W e turn now t o Plaintiffs’ second challeng e to the
g overnment’s a

rg uments concerning § 1182(f)—namely

, that the President ex ceeded even the broad authority prescribed to him in § 1182(f) when he issued the Proclamation. B a sed on the evidence in the r ecord and the stated o b jectives of the Proclamation, we conclude that the g overnment is not likely to succeed on this issue either.

W e acknowledg e that “[ b] y its plain lang uag e, § 1182(f)
g rants the President broad discreti on to suspend the entry o f aliens into the United States.” Hawaii
, 138 S. Ct. at 2408. Nonetheless, the substantive scope of this power is not limitless. The “sole p rerequisite set forth in § 1182(f) is that
t he President ‘find[ ] ’ that the e n try of the covered ali e n s ‘would be detrimental to the interests of the United States.’” Id. The President satisfied this prere q u isite in H a waii because “the entry policy [ in the Proclamation was] plausibly related to the Government’s stated o b jective to p rotect the country and improve vetting proc e s ses.” Id. at 2420. Thus, there, the President acted within the trad i t i o n al spheres authoriz ed by § 1182(f): in the contex t of international affairs and national security

, and working in tandem with the
cong ressional g oals of vetting individuals f r om countries identif i ed a s threats throug h an ag e ncy review. See id. at 2409, 2412.

B y contrast, the P roclamation here deals with a purely d o m e s t i c e conomic problem: uncompensated healthcar e c o s t s in the United States. See 84 F ed. Reg

. at 53,991. W e reject the g overnment’s arg ument that the Proclamation implicates the President’s foreig n affairs powers simply because t h eD O E # 1 V

. T R U M P 33

Proclamation affects immig ran t s

. Cf. E. Bay Sanctuary Covenant v. Trump
, 950 F .3d 1 242, 12 7 9 (9th Cir. 2 020) (“B roadly citing t o t he Rule’s immig ration contex t is insufficient to invoke the foreig n-af f a irs ex ception” so that the President does not have to follow the traditional pathway s

o f public rulemaking

. ). Therefore, while the “President [ may ] adopt[ ] ‘a preventive measure

. . . in t h e c o ntex t o f internati o n al affairs and national security ,’” and he is then “‘not required to conclusively link a l l of the pieces in the
puz z le before [courts] g rant weig ht to [ his] empirical conclusions,’” Hawaii
, 138 S. Ct. a t 2409 (quoting H older v

. Humanitarian Law Project
, 561 U.S. 1, 35 (2010)), his power is more circumscribed w hen he ad d r e s s es a purely domestic economic issue, s ee E. Bay Sanctuary Covenant
, 950 F .3d at 1279.

I ndeed, in domestic economic matters, the n ational security and foreig n affairs justifications for p olicy implementations disappear, and the n ormal p o licy

- making channels remain the d efault rules of the g ame. F or instance, the “public charg e rule” discussed above attempts to resolve similar concerns related to the perceived financial burden o f immig rants w ithout resortin g to § 1 182(f) for justification. See City & Cty. of S

.F.
, 944 F

. 3d at 779–80 (ex plaining that the proposed rule interpreting this provision of the I N A went throug h the ty

pical n o t i c e -and-comment period under the Administrative Procedure Act). I n contrast, the Proclamation here was issued w i t h virtually no factual finding s, minimal reasoning

, and an ex tremely limited wi n d ow f o r public comment, raising serious que s t i o ns as to whether the President has effectively rewritten provisions of the I NA. W e therefore find it unlikely that the g overnment w ill succeed in its broad reliance on § 1182(f).D O E # 1 V

. T R U M P 34

Ag ain, w e do not prejudg e the resolution o f the merits o f this issue because the question is whether the g overnment has shown a strong likelihood of success on the mer i t s

. The Pl a i n t i ffs have raised sufficiently serious questions on the merits of their I

NA claim, including on the g overnmen t ’s defenses, that we cannot c o nclude that the g overnment has sustained its hig h b u r d e n of showing a strong likelihood o f success of the merits.

4

The district court issued a leng thy

, t h o u gh tful, a nd forceful opinion focusing on whether the Proclamation violated the nondeleg a tion doctri n e

. I n deference to the merits panel, we decline to a d dress the probable likelihood o f

success for either party o n th i s claim. See W a shington

, 847 F .3d at 1168.

I n addition, the Plaintiffs have r aised a number of issues
not addressed by the d istrict court, such a s the violation of the Administrative Procedure Act, w hi c h a lso may present serious questions on the merits.

C

The third Nken factor is whether a stay will substantially injure other parties, on which we touch o nly briefly g iven the
g overnment’s failure to satisfy the two most important Nken factors. See Nken

, 556 U.S. at 4 35. W e h ave already

ex p lained that the plaintiff s have established irreparable injury

. S

ee Part I I I .A, supra

. I n a ddition, the record demonstrates the sig nificant e ffect of the Proclamation on other parties. Twenty -one states, th e D i strict of Columbia, and the City of New York f iled a mici briefing describing theD O E # 1 V

. T R U M P 35

s i gnificant harm they and o ther g overnmental entities wil l suffer if the Proclamation is allowed to g o into effect. These amici ex plain that imm i g rants “are v ital to the economic, civic, a nd s o c i a l fabric of our states a n d city .” I ndeed, the

e v idence in the r ecord indicates that in 2014, immig rant- l e d households paid more than $26 b illion in state and local tax e s in California, 2 and $736 million in state and l o c al tax e s in Oreg on. 3 Plaintiffs and amici provided further e v i d e nce credited by the district c o urt to satisfy this f actor. See Doe
, 4 1 8 F. Supp. 3d at 599–600 ( crediting evidence that t h e implementation of the Proclamation will interrupt family

r e u n i f i c a t i o n , d e t r i m e n t a l l y a ff ec t j o b s e c t o r s t h at dispr oportionately employ immig r ants, and increase the number of underinsured immig r a n ts who will be p rohibited from purchasing subsidiz ed ACA insurance plans). The
g overnment does not seriously contest this e v i d ence. This factor favors the Plaintiffs.

D

The final Nken factor is w here the public int e r e st lies. “The purpose of a preliminary injunction is alway s to prevent irreparable injury so a s to pr e serve the court’s ability to render a meaning ful d ecision on the merits. I t often happens that this purpose is furthered b y the status q u o , b u t not alway s.” G olden Gate Restaurant Ass’n v. City & Cty. of San Francisco
, 512 F .3d 1112, 1 1 16 (9th Cir. 2008) (quoting

2 A m

. Im

m ig ratio n Co u

n cil

, Immig r

a n ts in Ca lifo rn ia 4 (2 0 1 7) (h ttp s://tin

y u rl.co m / CA P

- Im m ig ran ts- i n

- CA ).

3 A m

. Im

m ig ratio n Co u n cil, Immig ra n ts in Oreg o n (2 0 1 7 ) ( h t t p s : / / www. a m e r i c a n i m mi 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 mi g r a n t s

o reg o n ).D O E # 1 V

. T R U M P 36

Canal Authority of F

l o r i d a v. Callaway

, 489 F .2d 567, 576 (5th Cir. 1974)). I n this cas e , t he public interest lies with maintai n ing the status quo while the appeal is pending

. F o r countless decades, a stable immig ration sy stem has provided for families to be u nited throug h a visa sy stem that did n o t require purchase of selected insurance products for entry into the United States.

The g overnment contends this factor weig hs in i t s f a vor b e cause the Proclamation a s implemented constitutes t h e status q uo , which would be upended if a stay is not issued. B ut it was the Proclamation that altered the status quo for the Plaintiffs, whose fam i l y members had qualified for entry under established immig r ation policy

, but a re n ow inadmissible under the Proclamation. The “purpose of a preliminary injunction is merely to p r eserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch , 451 U.S. 390, 395 (1981). This observation has even more force here, where we a re considering only a stay pending appeal of a pre l iminary injunction. I n the g overnment’s re- imag ining of the status
quo in this c ontex t, this factor would alway s tip in the
g overnment’s f

avor, effe c t ively rendering the Court powerless to ex ercise its discretion on this factor in such instances.

Given the irreparable harm to the Plaintiffs, t h e l ack o f irreparable harm to the United States for maint a ining the
status quo pending r esolution of this appeal, and the injury to other parties if the Proclamation is i m m ediately implemented, the pu b l i c interest favors preserving the status quo

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

. T R U M P 37

I V

W e f inally consi d e r t he scope of the district court’s preliminary injunction. I n t his case, the district court determined that a nationwide injunction w as a ppropria t e. B ased on evidence in the record, the district court concluded that the Proclamation would cause sig nificant harm to 21 states, the District of Columbia, and New Y ork City if allowed t o go into effect there. According ly

, the court enjoined the P r o clamation across the country to preserve uniformity in immig ration policies. Doe , 418 F

. Supp. 3 d at 603. Subsequently

, t h e district court certified the two

n a tionwide subclasses noted above: the U nited Sta t e s Petitioner subclass a

nd the Visa A pplicant subclass. The
g overnment has not y et soug ht to appeal that certification.

I n the present procedural posture —a request for a stay pend i n g the appeal of a preliminary injunction—a provisionally certified nationwide class is suf ficient justification for a nationwide injunction. 4 See Al Otro Lado

, 952 F .3d at 1004 n.4. B ecause the cl a s s h e r e is nationwide, and b ecause a nationwide injuncti o n i s necessary to provide the class members with complete relief, we conclude that the
scope of the injunction is appropriate at this juncture,
reg ardless of whether or not it was when orig inally issued.

“The scope of an injunction is ‘dependent as much on the equities of a g iven case as the substance of the leg al issues it presents,’ an d c ourts must tailor the scope ‘to meet the

ex ig encie s of the p articular case.’” A zar , 911 F .3d a t 584 (quoting Trump v. Int’l Refugee Assistance Project
, 1 37 S. Ct.

4 Sh o u ld t

h e g o v ern m en t u ltim ately p rev ail in rev ersin g t h e class certif icatio n , th en

th e sco p e o f

th e in j u n ctio n sh o u ld b e rev i s ited

.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 g overnment has not shown t h at it will be irreparably injured absent enforcement of the Proclamation, while the Plaintiffs have shown that the immediate implementation of the Proclamation will affect the long -st a n d i n g practice of h ow immig ration visas a re processed and will prevent class members from r e u n iting with their fam i lies. Plaintiffs have raised serious concerns that class members will be seriously injured if the Proclamation is implemented immediately , and thus the ex ig encies of this

case indicate that a

n injunction pro t e cting the certified class is “ not more burdensome than ne c essary ” to provide relief

w h i l e t h e merits o f this c ase are pending

. See id. (citing Califano v. Y

amasaki , 442 U.S. 682, 702 (1979)).

I n addition, “there is no b a r a ga inst class-wide, a nd 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 members the relief to w h ich they a re entitled. Many of the ty pical circumsta n c e s t hat counsel
ag ainst the n ationwide scope of an injunction are absent from this case. N o litig ation challeng i n g t h i s Proclamation is pending elsewh ere, alleviating concerns o ccasionally associated with nationwide injunctions that such injunctions deprive other courts from offering d iverse perspectives on the leg al i s s u e s while similar litig ation is ong oing in multiple forums. See Az a r , 911 F .3d at 5 83. Moreover, the district
court h ere has not stay ed the preparation of this c ase for trial pending the appeal of the nationwide injunction, removing a consid e r a t ion that “mag nifies” the concerns associated with nationwide injunctions. S ee id. The nationwide scope of the i n j unction is also based on the certified subclasses, which elimina t es some concern that a nationwide injunction isD O E # 1 V

. T R U M P 39

overly burdensome. Cf. id. at 582–83 (“[ I ] njunctive relief
g enerally should be limited to apply only to named plaintiffs

were there is no class c ertification”) (quoting Easyrid e rs Freedom F.I.G.H.T. v. H a n n igan
, 92 F .3d 1486, 1501 (9th Cir. 1996)).

F urther, “[ t] he I

NA was d esig ned to implement a u niform federal policy ,” K

a h n v

. I NS
, 36 F .3d 1412, 1414 (9th Cir. 1994), and we have und erscored the n e ed for a “comprehensive and unified” immig ration policy

, Arizona v

. United States
, 5 6 7 U .S. 3 87, 401 ( 2012); 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 immig ration policy flies in the face of [ uniformity ] requireme n t s”); Hawaii v

. Trump
, 878 F

. 3d 662, 701 (9th Cir. 2 0 1 7 ) (“B ecause this case implicates immig ration policy

, a nationwide injunction was necessary to g ive Plaintiffs a full ex p ression of their rig h ts”), rev’d on other grounds , — U.S. —, 138 S. Ct. 2392 (2018). Th e p r o v i sions of the I NA that are affected by the Proclamation represent the current “national i m mig r ation policy

, and an injunction that appli e s t hat policy to some individuals while rescinding i t as to others is inimical to the principle of uniformity .” Regents o f the U niv. of Cal

. , 908 F .3d at 512. Consequently

, a more limited injunction o f the P r o clamation would “needlessly c omplicate ag ency a nd individual action in response to the U nited States’s chang ing immig ration requirements,” E. Bay Sanctuary Covenant
, 950 F .3d at 1284, and so the nationwide injuncti o n of the Proclamation is justified.

Thus, because the cert i f

i e d class is nationwide in scope

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

o r m i t y i n a d m i n i s t e r i n g f e d e ra lD O E # 1 V

. T R U M P 40

immig ration law, the district c o urt did not abuse its discretion in entering a nationwide injunction.

V

I n sum, the g overnment has not established the requisite irreparable harm necessary to justify a stay pe nding appeal. I ts rig hts may be vindicated upon completion o f t h i s litig ation. The alleg e d monetary harms to third parties upon which the g overnment relies do not constitute irreparable harm. W hile that sole f

actor is dispositive, we also conclude that the g overnment d id not meet its hig h burden to satisfy the other Nken factors. I t has n ot demonstrated l i k e lihood o f

success. Stay ing the injunction would injure both the p laintiff class a nd third parties, and the public interest weig hs ag ainst entering a stay

. The p reliminary injuncti o n p reserves the

s t atus quo d

uring the pendency of this appeal. The distr i ct court d id not abuse its discretion in determining the scope o f the preliminary

injunction.

F or these reasons, we deny the motion t o s t ay the preliminary injunction pending appea l

. W e do not prejudg e the consideration of the merits appeal.

MOTION DENIED.

B RESS, Circuit J udg e, dissenting :

Today ’s d e c i s i on is y et the latest ex ample of our court allowing a univers al injunction o f a clearly constitutional Ex ecutive B r anch immig ra t i on policy

. This time, the President in Proclamation N o

. 9945 imposed c ertainD O E # 1 V

. T R U M P 41

restrictions on the entry of immig rants w ho, in the President’s judg ment, will unduly burden the American healthcare
sy stem. I n what unfortunately h as b ecome standard operating
pr o c e d ure, the district court enjoined the Proclamation o n a nationwide basis before it could take effect. W hile declining
to endorse the district court’s central rationale, m y fine colleag ues in th e m a

jority find a way to justify the district court’s d e c i sion, w hile refusing to stay or limit its b lanket injunction.

The majority g r a v e ly errs in concluding that the Proc lamation is likely unconstitutional. There is n o leg al basis to impose novel and u njustified restrictions on w hat the Supreme Court has described as “the President[ ’s] sweeping authority to decide whether to suspend entry , whose entry to suspend, and f

or how long .” T

r u m p v. Hawaii
, 138 S. Ct. 2392, 2413 (2018). T h e President is s u ed Proclamation No. 9945 based on his constitutional powe r s and his statutory authority in 8 U.S.C. § 1182(f). T he Supreme Court has h eld that this provision “[ b] y its terms” “ex udes d e f e r e n ce to the President in every clause.” Id. at 2408. Yet the majority opinion g ives deference to every one but t h e President—the district court, whose analy sis was deeply flawed; States w ho joined an amicus brief and w ho are not even parties to this
case; a nd plaintiffs’ ex pert, Dr. L e ig hton Ku, who candidly admits he performed “not an ideal analy sis.”

I t is a bad day for the separ at i o n o f powers when the Ex ecutive—operating at the apex of his constitutional mandate—loses out to play ers who lack the a uthority that the Constitution and Cong ress entrusted to him. And i t i s an equally bad day for the rule of law when the majority opinion

e n d o rses a

rg uments that the Supreme Court ex pressly rejected two y ears a g o in Tr u mp v. Hawaii

. As with manyD O E # 1 V

. T R U M P 42

immig ration p olicies, reasonable minds wi l l differ as to whether Proclamation No. 9945 is g ood or bad policy

. B ut the g reat policy debates of our time should be resolved in the halls of Cong ress, the public square, and at the b allot b ox , not by a district court in Or eg on or a three-judg e panel in San Fr a ncisco. W hat I know is that Proclamation No. 9945 is valid as a matter of law. And that is what matters here.

The m a jority ’s unjustified intrusion on presidential
prerog ative is, however, only made more problematic by the
scope o f the injunction tha t t h e c ourt allows. The district court, as noted, issued a nationwide injunction, and one that in fact operates worldwide. I njunctions such as this raise
many issues, a s the Supreme Court has sig naled in repeatedly stay ing lower courts’ (and our court’s) universal injunctions. See W olf v

. I nnovation Law Lab

, No. 19A960, 2020 W L 1161432 (U.S. Mar. 11, 2020); De p ’ t of Homeland Sec. v

. New Y o rk

, 140 S. Ct. 5 99 (2020); Barr v. E. Bay Sanctuary Covenant
, 140 S. Ct. 3 (2019); Trump v. Int’l Refugee Assistance Project
, 138 S. Ct. 542 (2017); Trump v. Hawaii
, 138 S. Ct. 542 (2017).

Not heeding these signals, the majority allows another universal injunction to r emain in place, bu t with new a nd

un fo rtunate twists. W h en the d istrict court enjoined Proclamation No. 9945, it did so without certify ing any c lass. J ust recently , however, and many months into this appeal of its injunction, the district court c e r t ified two classes, one o f
persons in t h e U n i ted States and one of “foreig n nationals” around th e world. The sequence of events here is cause for
concern, and the majority ’s r eliance on the belate d c l a s s certification decision confirms that the district c o urt’s universal injunction was not justified when issued. B ut what the class certification ruling also shows is that the ex cessesD O E # 1 V

. T R U M P 43

of universal injunctions stem in larg e part from a f ailur e to abide by the r i go r o u s r e q u i r e m e n t s for class

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.

I f there is any solace here, it is that the majority has only denied a stay of the injunction. I h ope the me r i t s p an el that receives this case will see t h i n gs d ifferently

. B ut that decision will be issued many months f rom now, if not long er. There is n o r eason for the Ex ecutive to have his c hosen a nd plainly constitutional Proclamation p u t on ice in the interim—a d elay that inflicts real d a m ag e on our constitutional sy stem. F or the reasons ex pressed here and in
my prior dissent in this matter, see D oe # 1 v. Trump
, 944 F .3d 1222, 1223–29 (9th Cir. 2019) (B ress, J
., dissenting ), I would have stay ed the district court’s in j u n c t ion. I therefore respectfully

dissent.

I

On October 4, 2019, t h e President issued Presidential Proclamation No. 9945, Suspension of E ntry o f Im m i grants W ho W ill Financially Burden the United States Healthcare System, in Order To Protect the Av a i l ability of Healthcare B e n e fits for Americans

. 84 F e d

. Reg

. 53991 (2019)

. I nvoking the Presiden t ’s a uthority under 8 U.S.C. § 1182(f)

a nd the Constitution, the Proclamation restricts the entry o f certain immig r ants who cannot show that, within 30 day s of arriving in the United States, they “ w i l l be covered b y approved health i n surance” or “possess[ ] the financial

resour c e s to pay for r easonably foreseeable medical costs.” Id. at 53992.D O E # 1 V

. T R U M P 44

The Proclamation is f o u n ded on the President’s d e t e r m i n a t i o n t hat u ninsured immig rants impose u nwarrant e d
costs o n the American healthcare sy stem. The Proclamation references “data show[ ing ] that lawful immig rants are about three times more likely t h a n U n ited States citiz ens to lack health insurance,” not i n g the “substantial” burden that the uninsured impose o n healthcare p roviders and tax p ay ers. Id.
at 53991. The President found that this burden—which takes the “form of h ig her tax es, hig her p remiums, and hig her fees for medical services”—has contributed to uncompensated

care costs in e x c e s s o f $ 35 billion for each o f the last 10 y ears. Id. The Proclamation also identified other burdens that the uninsured impose, including “reliance on publicly funded prog rams” and overreliance o n emerg ency r o om care, which creates “delay s for t h o s e who truly need emerg ency services.” Id. The President concluded that “[ c] ontinuing to allow e ntry into the United States of certain immig rants w ho lack health insurance o r the demonstrated ability to p a y f o r their healthcare would be detrimental” to the national interest. Id.

To address these problems, the Proclamati o n r equires visa applicants to show they “ will be covered by approved health insurance

. . . within 3 0 day s o f the a lien’s entry into the United State s , . . . unless the alien possesses the financial

resources to p ay for r e as onably foreseeable medical costs.” Id. at 5 3 9 9 2

. The Proclamation defines “approved health insurance” by reference to a leng thy list of coverag e options. Id. These in cl u d e employ e r-sponsored and retiree plans, family plans, visitor h ealth insurance plans, unsubsidiz ed health plans o ffered on Sta te ex chang es, Medicare, or “any other h ealth plan that provides adequate c overag e for medical

care as d etermined by the Secretary of Health and H uman Services.” Id. Plans need not be purchased prior to entry ;D O E # 1 V

. T R U M P 45

rather, the immig rant must only show that he or she will have the required coverag e within 30 day s of entry

. Id.

Enforcement of the Proclamation takes place a ll o ver the world at the consular offic e r level. An immig rant must “establish that he or she meets [ the Proclamation’s] requirements, to the satisfaction of a consular officer, before the adjudication and issuance of an immig r a n t v i s a

. ” I d. at 53993. The Proclamation a lso empowers the Secretary o f State to “establish standards and procedures [ to] g o vern[ ] such determinations.” Id. This r eview is distinct from other requirements that the law otherwise im poses. A s the Proclamation makes c lear, its r eview process “is separate a nd independent f

rom the review and d etermination r equired b y other s tatutes, reg u lations, or proclamations in d etermining the admissibil i t y o f a

n alien.” I

d. That would include, for instance, the public charg e provisions of the I mmig ration a nd Nationality Act (I

NA). 8 U.S.C. § 1182(a)(4).

I mportantly

, the Proclamation “shall apply only to a liens seeking to enter the United States p u r suant to an immig rant visa.” 84 F ed. Reg

. at 53992. The Proclamation thus “does
not affect the entry of aliens entering th e U n i ted States throug h means other than immig rant visas.” I d. at 53993. That includes persons seeking n onimmig rant visas o r refug ees. N o t h i ng in the Proclamation “ affect[ s] any individual’s elig ibility f

or asy lum, r efug ee st a

t u s , w i t h h o l d ing of removal, or protection under the Convention Ag ainst Torture and Other Cruel, I nhuman or Deg rading Treatment o r Punishment.” Id.

The Proclama t i on contains various other ex ceptions a s well. I t does n o t apply to “any a lie n holding a valid immig ra n t v i s a issued before the effective date o f thisD O E # 1 V

. T R U M P 46

proclamation,” or “ any alien under the ag e of 18, ex cept for
any alien accompany

ing a parent who is also immig rating to the United States and s u b j e c t to this proclamation.” Id.
at 53992. The Proclama t ion d oes not cover “ any alien w ho i s the child of a United States citiz en or who is seeking t o

e nter the United States pursuant to” specified v isas for children. I

d

. A lso ex c epted are b usiness travelers, foreig n students, temporary a g ricultural workers, and various others. Id. On a “case-by

-case basis,” the Secretary of State may

ex e mpt from the Proclamation “any alien whose entry would be in the national interest.” Id. at 53993.

“[ W ] ithin 1 80 day s” of the Proclamation’s effective date and each y ea r t hereafter, the Secretary of State, “in consultation with the S ecretary o f Health and H uman Services, the Secretary

of Homeland Security

, and the heads

o f other appropriate ag encies, shall submit” a report to t h e President. Id. This report must ad d ress “ the continued necessity of a

nd any adjustments that may be warranted to the suspension and limitation o n entry ” imposed, as w ell a s “other measures that may be w arranted to protect the integ rity of the United States healthcare s y stem.” I d. The Proclamation makes clear that “[ i] f the Secretary o f State, in consultation with the heads of other appropriate e x ecutive departments and ag encies, determines that circumstances no long er warrant the continued effectiveness of the suspension and limitation on entry , ” the President is to be “immediately ” advised. Id.

Two day s before the Proclamation was set to take effect,
p l a i n t i ff s

— a M u ltnoma h C o u n t y , O r e go n a d v o ca c y org aniz ation and several U.S. citiz ens with family members seeking visas—obtained a temporary restraining order blockin g enforcement of the Proclamation worldwide. OnD O E # 1 V

. T R U M P 47

November 26, 2019, and leading with the non-deleg ation doctrine, the district court gr an t e d plaintiffs’ request for a universal preliminary injunction and refused to stay its order. Doe # 1 v. Trump
, 418 F

. Supp. 3d 573 (D. Or. 2019). After the g o vernment soug ht a stay of the injunction pending appeal, our court denied the g o vernment temporary emerg ency relief. Doe # 1 v

. Trump
, 944 F .3d 1222–23 (9th Cir. 2019); see also id. at 1223–29 (B ress, J ., dissenting ).

F our months after the g o vernment soug h t a s t a y in this
court and three months after we heard arg umen t o n t hat motion ( and while the motion w as under submission), the district court g ranted c lass certif i cation. Doe # 1 v. Trump
, 2020 W L 1689727 (D. Or. Apr. 7, 2020). The district court issued this class c ertification decision four and a half months after entering its nationwide preliminary injunction, and over five months after entering the temporary restraining order that blocked the Proclamation from taking effect any

where.

The district court c e rtified two classes under F ederal Rule of Civil Procedure 23(b)(2), one c overing per s o n s in the United States and one covering persons all over the world:

(1) U .S. Petitioner Subclass :

I ndividuals in the United States who currently have or will have an approv ed or pending petition to the Unite d States g o vernment to sponsor a noncitiz en f

a m i l y member for an immig rant visa; a

nd wh o s e sponsored family member is subject to the Proclamation a nd unable to demonstrate to a consular office r’ s satisfaction that he or she “will be covered b y approved h e a lth insuran c e ” within 30 day sD O E # 1 V

. T R U M P 48

after entry or will be able “to pay for reasonably

foreseeable medical costs”; and

(2) V isa Applicant Subclass :

I ndividuals who are f

o reig n n a t i onals who (i) have a pplied for or will soon apply to the United States g overnment f o r an immig rant visa; (ii) are otherwise e lig ible to be g ranted the vi s a ; but (iii) are subject to the Proclamation and unable to demonstrate to the satisfacti o n of a consular officer that they “will be covered b y approve d h e alth i n surance” w ithin 3 0 day s after entry or w i l l be able “ to pay for r easonably foreseeable medical costs.”

Id. at *17. The g overnment’s time to seek leave to appeal the district court’s class certification decision has not y et ex pired. F ed. R. Civ. P. 23(f) ( 45-day deadline “ i f a ny party is the United States, a United States ag ency , o r a U n i ted States officer or employ ee sued for an act or omission occurring in connection with duties performed on the United States’ behalf”).

Today

, our court now denies the g overnment’s r equest for

a stay pending app e a l

, a llowing the u niversal injunction to remain in place. The c ourt’s decision is quite wrong

, a nd so I respectfully

dissent.

I I

The following canonical factors control the g overnment’s request for a stay

pending appeal:D O E # 1 V

. T R U M P 49

(1) whether the stay a

pplica n t has made a strong showing that he is likely to succeed on the merits; (2) whether the a pplicant will be irreparably injured ab s e n t a stay ; (3) whether i s suance of the stay will substantially injur 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 Cir. 2019) (q u o t ing Nken v. Holder

, 556 U.S. 418, 433–34 (2009)).

T h e majority opinion beg ins with the g overnment’s irreparable h arm and o nly later turns to its likelihood o f

success on the merits, the supposedly “second most important Nken f actor.” Maj. Op. 22. I have elsewhere ex plained h ow

a tactical d eviation from the normal sequence o f the stay factors “waters down the merits analy sis.” See Al Otro Lado

v. W olf

, 9 52 F .3d 9 99, 1022 (9th Cir. 2020 ) ( Br e s s, J
., dissenting ). That is the c a se here, w h e r e t he g overnment’s asserted harms follow from its strong likelihood of success on the merits. See id. (“The seque n c i ng of today ’s opinion can only reflect the majority ’s implicit a c knowledg ement that the
g overnment’s c ase is strong est where it most matters, namely

, the likeliho od of success on the merits.”). I nversion of the stay factors is a recent trend a nd one that produces distortion in the stay

analy sis.

I thus beg in, as we usually do, with the merits.D O E # 1 V

. T R U M P 50

I I I

A

The majority concludes that the President has likely

ex c e eded his powers o n the theory that Proclamation No. 9945 c onflicts w i th statutes that supposedly forbid it, while failing t o fall within 8 U.S.C. § 1182(f). This is seriously mistaken.

Under Trump v. H

awaii
, the g overnment has made a strong showing that Proclamation No. 9945 is a lawful

ex e r cise of the President’s vast co n s titutional and statutory powers in this space. I address § 1182(f) first because, in combination w ith his innate powers under the Constitution, § 1182(f) creates the hig h-water ma r k f o r the President’s ability to place limits on w ho e nters thi s c o u n t r y

. Under § 1182(f) and the President’s inherent powers, Proclamation No. 9945 is plainly

valid.

Section 1182(f) provides:

W h enever the President finds that the entry o f
any aliens or o f any c l a s s o f aliens into the United States would be detrimental to the inter e sts of the United States, he may b y proclam a tion, and for such period as he shall deem necessary , suspen d t he entry of all

a l i ens or any class o f aliens a s immig rants o r nonimmig rant s , or impose on the entry o f aliens any restrictions he may deem to be appropriate.D O E # 1 V

. T R U M P 51

8 U.S.C. § 1182(f). J ust two y e ars ag o, the Supreme Court in Trump v. Hawaii held that § 1182(f) “ex udes deference to the President in every clause” and “g rants the President sweeping authority to decide whether to suspend entry , whose entry to suspend, a

nd for how long .” 138 S. Ct. at 2408, 2413. B ased

on this “broad discreti o n to suspend the entry of aliens into the United States,” the Supreme Cou r t u pheld ag ainst constitutional and statu t o r y challeng es a presidential proclamation suspending entry of persons from s p e c ified countries. I

d. at 2408.

The “sweeping

authority ” that justified the proclamation in Trump v. Hawaii clearly allows the President to do what he did here in Proclamation N o. 9945. A s the Supreme Court has held, the “sole prerequisite set forth in § 1182(f) i s that the President ‘find[ ] ’ that the e n try o f the covere d a l i ens ‘would be detrimental to the interests of the United States.’” Id. at 2408 (quoting 8 U.S.C. § 1182(f)). The President made that finding in Proclamation No. 9945. 84 Fe d

. R eg

. at 53991. I n Trump v. Hawaii
, moreover, the plaintiffs a rg u ed that the proclamation there conflicted with provisions of the I NA, which the p laintiffs believed “already specified” Cong r ess’s a

pproach to the issue. I d. at 2411. B u t the Supreme Court ex pressly rejected this theory because “[ f] airly read,” § 1182(f) “vests authority in the President to impose additional limitations on entry bey ond the g rounds for

ex c lusi o n s e t f

o r th in the I NA.” I d. at 2412. Proclamation No

. 9 9 4 5 is another such “additional limitation[ ] on e ntry

. ” Id. I t is therefore plainly valid under § 1182(f), as interpreted by the Supreme Court.

Ag ainst all o f this, the major ity offers two bases for disting uishing Trump v

. H a w a ii and for concluding that the P r esident has likely ex ceeded his powers under § 1182 ( f ).D O E # 1 V

. T R U M P 52

B ut Trump v. Hawaii considered and square l y r ejected the
very arg uments that the majority credits.

First
, the majority concludes that “the Proclamation’s fai lure to e x plicitly or implicitly establish a ny time

c o nstraints on the healthcare prohibition raises serious questions as to whether the Proclamation is a ‘susp en s i on’ according to the plain mean ing of the term in § 1182(f).” Maj. Op. 31–32. The Supreme Court considered and rejected this same arg u ment in Trump v. Hawaii

. W hile the majority opinion complains that Proclamation No. 9945 “ d o es not have an endpoint,” Maj. Op. 29, Trump v. Hawaii rejected the
p laintiffs’ arg ument that a § 1182(f) “suspension” “mean[ t] that the President is required to prescribe in advance a fix ed end d ate for the entry restrictions.” 1 38 S

. C t. at 2410. Citing past p roclamations, Trump v. Hawaii concluded it was sufficient that the proclamation “ m a kes clear that its ‘conditional restrictions’ will remain in force only so long a s necessary to ‘address’ the identified ‘inadequacies and risks’ within the covered nations.” Id. I n particula r , t h e Supreme Court n oted that the proclamation “estab l ishes an ong oing
process to eng ag e covered nations and assess every 180 day s whe t her the entry restrictions should b e modified o r terminated.” Id.

The majority here c laims that Proclamation N o

. 9 945 is different because it supposedly “omits any indication that the health insurance requirement is temporary .” Ma j

. O p. 29. I ndeed, the majority claims the Proclamation lacks “even an implicit” time limitation, “ such as a limit measured by the

occurrence of some future e v e n t or c o n dition.” Id. at 29. That is an uncommonly unfair r eading of the Proclamation. An e ntire section of Proclamation No. 9945 provides for
ong oing review o f its “suspension” on entry

. TheD O E # 1 V

. T R U M P 53

Proclam ation requires that a report b e submitted to the President on “the continued necessity o f and any adjustments that may be warranted to the suspension and limitation on entry .” 84 F e d. Reg

. at 539 9 3 (emphasis added). T he first report must be submitted to the President within 180 day s o f the Proclamation’s effective date, and “annually thereafter.” Id. I f “circumst a n ces no longer warrant the continued effectiveness of the suspension or limitat i o n o n entry ,” the President must “ immediately ” be a dvised. Id. ( e m phases added). The review process here i s n o t materially different fr o m the one at issue in Trump v. Hawaii

. The majority opinion blinks reality

in sug g esting otherwise.

I nstead, the m a

j o rity claims the Proclamation is not a temporary limitation on entry because while ag ency officials

can advise the President that the s u s pension is no long er warranted, “[ t] here is no requirement that the President a ct on the advice.” Maj. O p. 29. T h at is a rat h e r r e markable
statement. W hen ex e rcising his vast powers under § 1182(f) and Article I I of the Constitution, nothin g requires the President to bind h imself to the mas t and pre-commit to the recommendations of inferior officials. And like the Proclamation here, the p roclamation in Trump v. Hawaii also did not require the President uncritically to a ccept the advice of his subordinates. See Pres. Procl. No. 99645, 82 F ed. Reg

. 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 P r e s ident” and stating “the Secretary of Homeland Security may recommend to the President the r e m o v a l or modification of any or all such restrictions a

nd limitations”) (emphases added)

. The majority ’s insistence that the fatal flaw in the Proclamation is the President’s unwilling n ess to ag r ee in advance to advice he has not y et received reflects an untenable theory of Ex ecutive power with no basis in principle or common sense.D O E # 1 V

. T R U M P 54

Even more unsettling is the majority ’ s determination that Proclam a t i on No. 9945 is not a temporary “suspension” b e c a use of its “likely ineffectiveness.” Maj. Op. 31. T h e majority asserts that “the likely ineffectiveness o f the health ins u r ance requirement sug g ests that uncompensated care costs will remain hig h,” so that “the perceived ‘necessity ’ of the Proclamation could therefore continue in perpetuity .” Id. I n other words, the majority concludes tha t because the Proclamat i o n will n ot successfully “reduce uncompensated healthcare costs,” those costs will remain hig h, meaning that the Proclamation will continue in effect forever. Id. at 30.

The majority ’s co n cl u s i o n a b o u t the “likely ineffectiveness” of the Proclamat i on turns on plaintiffs’

ex p ert’s se l f

- d e s cribed “not

. . . ideal analy sis.” I will have

more to say on that later. W hat ma t t e r s h e r e is that the majority ’s reasoning ag ain defie s T r ump v

. Hawaii

. The plaintiffs there similarly maintained t h at a proclamation would not adequately resolve “the President’s stated concern.” 138 S. Ct. at 2409. I n reje c t i n g t h is view, the Supreme Court could not have been clearer that “a searching inquiry into the persuasiveness of the President’s justifications is inconsistent with the b road statutory tex t [ o f § 1182(f)] an d t h e deference traditionally accorded the President in this sphere.” Id. I n d ee d

, the Supreme Court
went on, “‘[ w] hether the President’s chose n m e t hod’ o f addressing perceived risks is justified from a p olicy perspective is ‘ irrelevant to t h e scope of his [ § 1182(f)] authority .’” Id. ( quoting Sale v. Haitian Ctrs. Council, Inc.
, 509 U.S. 155, 187–88 (1993)) (emphasis added).

The Supreme Court in Trump v. Hawaii in no u ncerta i n terms rebuffed th e p l aintiffs’ effort to “ challeng e the entry suspension based on their perception of its effectiveness.” Id.D O E # 1 V

. T R U M P 55

at 2421. The majority ’s armc h a ir conclusion about the “likely ineffectivene s s ” of Proclamation No. 9945 is thus precisely what the Supreme Court told us not to d o

. The Supreme Court reiterated in Trump v. Hawaii that “we cannot substitute o ur o wn a ssessment for the Ex ecutive’s predictive judg ments.” I

d. Yet the majority opinion does just t h a t

. Today ’s decision is t h e r efore a serious affront to the core separation of powers principles that Trump v. H a waii reaffirms and reinforces.

The majority ’s sug g e stion that the o utcome mig h t have been different if the President had eng ag ed in a more “datadriven a naly sis,” Maj. Op. 30, reflects an eq u ally serious misunderstanding of our role. Si n c e w h e n does this court know h ealth policy better than the Presiden t of the United States and the other Ex ecutive B ranch officials whom the Proclamation requires to be involved—the Secretary of State, the Secretary of Health and Human Services, the Secretary o f Homeland Security

, and “ the heads of other appropriate
age n c i e s”? 84 F e d. Reg

. at 53993. The majority ’s conclusion that Proclamation No. 9945 is not a time-limited “suspension ” on entry is nothing more than a p olicy disag reement with the Ex ecutive on a matter constitutionally and statutorily

committed to his authority

.

Second

, the majority c oncludes that P r o clamation No. 9945 likely ex ceeds the President’s § 1182(f) powers because the Proclamation “deals with a purely domestic economic problem: uncompensated healthcare c ost s in the United States.” Maj. Op. 3 2. Once ag ain, the majority opinion disreg ards Supreme C o u rt p recedent, mischaracteriz es the Proclamation, and improperly t re a d s on the President’s constitutional and statutory powers. I ndeed, no court has everD O E # 1 V

. T R U M P 56

a d opted the foreig n/domestic distinction that the majorit y tries to eng raft onto § 1182(f).

Proclamation No. 9945 places restrictions o n the entry o f imm i g r ants into this country

. F or over a century , the Supreme Court has been clear that “[ t] he ex clusion of aliens is a fundamental a c t o f sovereig nty ” that “is inherent in the

ex e c utive p ower to control the foreig n affairs of the nation.” United States ex rel. Knauff v. Shaughnessy

, 338 U.S. 537, 542 (1950); see a lso

, e.g. , Hawaii
, 138 S. Ct. at 2418; INS v

. Aguirre-Aguirre
, 5 26 U.S. 415, 425 (1999) (“[ W ] e have
recog niz ed that judicial deference to the Ex ecutive B ranch is especially appropriate in the immig ration contex t where officials ex e rcise especially sensitive political functions that implicate q

uestions of f

o reig n r elations.”) (quotations omitted); Harisiades v. S haughnessy

, 342 U.S. 580, 588–89 (1952) (“[ A ] ny policy toward aliens is vitally and intricately interwoven with contemporaneous polic i e s in reg ard to the

c o n d u c t of foreig n relations

. . . .”). The majority ’ s notion
t h a t the ex clusion of persons from this country can be recharacteriz ed as “a purely domestic economic issue,” Maj. Op. 33, thus contradicts settled Supreme Court case law.

Given the source of authority that the President invoked, it is therefore unsurprising that Proclamation No. 9945 on its face has a n obvious international valence. I f it ever g oes into effect, the Proclamation will be implemented by consular officials abroad, who must int e r v i ew aliens seeking visas. 84 F ed. Reg

. at 53993; Notice of Info. Collection Under OMB Emergency Review: Immigrant Health Ins. Coverage
, 8 4 F ed. Reg

. 58199 ( 2 019). The Proclamation a llows the S e c r e t ary of State to “establish standards a nd procedures g ov e rning such d eterminations.” 84 F ed. Reg

. 53993. I t enables the Secretary of State to ex empt a liens from the Proclamation.D O E # 1 V

. T R U M P 57

Id. And it entrusts the Secretary o f State with le ad responsibility for preparing re gular reports to the President. Id. The idea that the Proclamation concerns matters “purely domestic,” Maj. Op. 33, i s cl e a rly belied by the tex t a nd intended operation of the Proclamation itself.

There are also ob v i o u s reasons why no court has forced

a foreig n/domestic distinct i o n o n § 1 182(f). The tex t o f § 1182(f) a llows the President to suspend the entry of a liens who “would b e d e t rimental to the interests of the United States”—without d efining w hat those interests may b e a nd without disting uishing b etween for e i gn and domestic interests. Many

(if not most) immig ration policies naturally implicate domestic interests as w ell as f oreig n ones. This is
to be ex pected for a provision that g overns e ntry of persons

“ into the United States.” 8 U.S.C. § 1182(f) (emphasis added); see also, e.g. , Pres. Procl. No. 4865, 4 6 Fe d

. R eg

. 48107 (1981) (suspending entry to p reserve “l a w e n f orcement

reso u r ces” and promote the “welfare and safety o f communities” in the southeastern United States).

I n fact, many of the I NA’s e x press g rounds f o r inadmissibility could be said to involve “domestic” concerns,

or even “purel y domestic” ones. S ee, e.g. , 8 U .S.C. § 1182(a)(1)(A)(i) (alie ns with communicable diseases); id. § 1182(a)(1)(A)(ii) (aliens w ho have not been v a ccinated); id. § 1182(a)(2)(A) (ali ens with a criminal history ); id. § 1182 ( a ) ( 4 ) (aliens who are likely to become public charg es); id. § 1182(a)(5) (aliens who would disrupt domestic labor markets or wag e s). Since § 1182(f) “vests authority in the President to impose additional limitations o n entry bey ond the g rounds for e x clusion set forth in the I N A
, ” Hawaii
, 138 S. Ct. at 2412, it would b e b i z a r r e if § 1182(f)D O E # 1 V

. T R U M P 58

reflected a foreig n/domestic limitation that appears nowhere in the tex t or structure of the I N A as a whole.

This manufactured dist inction is also inconsistent with
every thing the Supreme C ourt has told us about § 1182(f). T hat p rovision “ex u des deference to the President in e v e r y clause” a nd “g r ants the President swe e p i n g authority to decide whether to suspend entry , whose entry to suspend, a nd for how long

. ” Hawaii
, 138 S. C t. at 2408, 2413. The majority ’s u n p r ecedented e ffort to recast § 1182(f) wrong ly deprives th e P r esident of authority that is rig htfully his a nd will lead to e ndless problems o f a dministration a s courts debate whether a g ive n i m mig ration p o licy is really more foreig n or domestic in nature. This is not th e § 1 1 8 2 ( f ) that Cong r ess enacted or th a t the Supreme Court construed in Trump v. Hawaii

.

B

I f Proclamation N o. 9945 is a v alid ex ercise of § 1182(f), what is the problem? The district court’s primary answer was that § 1182(f) was itself a n unco n s t i tutional deleg ation o f leg islative power to the Pr e s i d e n t

. I n the district court’s view, “[ t] here is no ‘ i n t e llig ible principle’ provided as to what it means to be ‘detrimental,’ what the ‘interests’ of the United States are, w hat deg ree of finding is required, or what deg ree of detriment is required

. ” D o e # 1
, 418 F

. Supp. 3d
at 590. The ma

j o r i ty opinion telling ly declines to endorse this rationale. Maj. Op. 34. B u t its description of the district court’s n on-deleg ation a n aly sis as “thoug htful” a nd “forceful,” id.

, fails t o acknowledg e—and if any thing

, compliments—the district court’s r emarkable departure from settled law.D O E # 1 V

. T R U M P 59

I addressed the n on-deleg ation issue at some leng th in my prior dissen t a t the a dministrative stay stag e. See Doe # 1
, 944 F .3d at 1226–27 (B ress, J

. , dissenting ). B ut in brief: the district court’s non-deleg ation holding is clearly incorrect. On j u st two occasions in our country ’s history h as the Supreme Court struck d own a cong ressional statute under the non-deleg ation doctrine. See Gundy v. United States
, 139 S. Ct. 2116, 2129 (2019). Section 1 182(f) d oes not present just the third occasion for doing so. T hat statute “has for decades b een the noted source of statutory authority for preside n t i al proclamations involving immig ration matters.” Doe # 1
, 944 F .3d at 1226–27 (B ress, J
., d issenting ). I t does not suffer from a mortal constitutional defect hiding in plain sig ht.

F ar from lacking an in t ellig ible principle, the Supreme Court in Trump v. Hawaii held that “ t he lang uag e o f § 1182(f) is clear” and that § 1182(f) is a “ comprehensive deleg ation” o f authority to the President. 138 S. Ct. at 2408, 2410; see also id. a t 2408 ( “ c lear statutory la n g u a g e”); id.
at 2410 ( “clear tex t”). Section 1182(f )

, t h e Supreme Court has told us, reflects “tex tual limits.” Id. at 2409. T his is not

a quarry f

rom which a non-de l e ga t ion challeng e can be mined.

I ndeed, the President’s power in this area does not derive solely from C o n g r ess, because “[ t] he ex clusion of a liens” is “inherent in the ex ecutive p ower to control the foreig n affairs of the nation.” Knauff

, 338 U.S. at 542; see also Hawaii
, 138 S. Ct. at 2424 (Thomas, J
., c oncurring ) (“Sectio n 1 1 82(f) does not set forth a

ny judicially enforceable lim its that constrain the President. N or could it, since the President has inherent authority to e x clude aliens f rom the country .”) (emphasis in orig inal and citation omitted). That is why “the strict limitation u

pon cong ressi o nal deleg ations of power toD O E # 1 V

. T R U M P 60

the President over internal affairs does not apply with respect to deleg ations of pow er in ex ternal affairs.” Y o ungstown Sheet & Tube Co. v. Sawyer
, 343 U.S. 579, 6 3 6 n

. 2 ( 1 952) (J ackson, J
., concurring ); see a lso Gundy

, 139 S. Ct. at 2137 (Gorsuch, J
., d issenting ) (“[ W ] hen a cong ressional st a t u t e confers wide discretion to the ex ecutive, no separation-ofpowers problem may arise if the discretion is to b e ex ercised

over matters alr eady within the scope of ex ecutive power.”) (quotations omitted). This was, in fact, the Supreme Court’s

ex a c t ex planation when it rejected a non-deleg ation challeng e to a precursor to § 1182(f). See Knauff , 338 U.S. at 542.

J ust last Term, the S u p r e me Court reiterated that it has “almost n e v e r felt qualified to second-g uess Cong ress reg arding the permissible deg ree of policy judg ment that can be left to those ex ecuting or a pply ing the law.” Gundy

, 139 S. Ct. a t 2 129 (quotations omitted). Eng ag ing in such second-g uessing in the contex t of a long standing statute in the

area of foreig n affairs, a s the district court did, would fundamentally reorder o ur constitutional s y s tem. I wish the majority h ad said this instead of imp l y i n g that the district court’s ruling warranted further consideration in this court.

C

The majority opinion instead h olds that th e g overnment has not made a strong showing o f success because Proclamation No. 9945 supposed ly “ c onflicts” with: (1) the Violence Ag ainst W omen Act’s ( VAW A) amendments to the I NA, 8 U.S.C. § 1182(a)(4)(E ) ; ( 2 ) the Affordable Care A ct (ACA), 42 U.S.C. § 10821, e t seq. ; and (3) the I NA’s public charg e provision, 8 U. S.C. § 1182(a)(4)(B )(i). Maj. Op. 22–28. I list these g rounds in the order the majority presents them.D O E # 1 V

. T R U M P 61

The district court, however, d evoted only a few sentences to VAW A

. See Doe # 1
, 418 F

. Supp. 3 d at 597. The district
court d i d n o t rely at all on any perceived conflict with the ACA. See id. at 597 n .6 (“The Court ex p resses no opinion at this stag e of the litig at i o n a b out whether the Proclamation also c ontravenes or o verrides various healthcare laws.”). A nd while the district court did r ely on a claimed conflict with the public ch a

r g e provision, a lleg edly r endering the Proclamation “unconstitutional under separation of p owers,” id. at 593, this was secondary

to its central non-deleg ation theory

.

I t therefore is ap p a re n t that the majority justifies the district c ourt ’ s i n

j unction o n quite different leg al bases than the district court itself. B ut any uneasiness with the district court’s rationales should have led to the i n j unction being stay ed, not reliance o n n ew rationales w it h y e t more leg al deficie n c ies. Reg ardless, the majority ’s central theory that Cong r ess in various enactments foreclosed Proclamation No. 9945, rendering

it unconstitutional, is plainly wrong

.

1

I beg in w ith the I

NA’s public charg e provisions, because

on this point the majority once ag ain flouts Trump v. Hawaii

. The I NA r enders inadmissible any alien who “is likely at any time to become a public charg e .” 8 U.S.C. § 1182(a)(4)(A). Consular officers make this determination using a series o f

non-ex haustive “minimum” f act o rs: ag e; health; family status; assets, resources, and fina ncial status; and education and skills. Id. § 1 1 8 2 (a)(4)(B ) (i)(I )–(V). The majority tells

us tha t Proclamation No. 9945 “eviscerates th[ is] statutory

s c h e me by making the acquisition of desig nated forms o f health insurance the sole consideration of whether anD O E # 1 V

. T R U M P 62

applicant should be ex c luded from consideration for a family visa.” Maj. Op. 27.

The majority ’s “evisceration” th e o r y is wrong

. A nd Tru m p v. Hawaii —which the majority d oes not mention in this portion of its opinion—tells us why

. N o t h ing in P ro clamation No. 9 945 “eviscerates” the public charge provision, for t h e o b v ious reason that these are simply two different gr o u nds for inadmissibility

. One can meet the public cha r ge p r ovisions but not the Proclamation, and vice

versa. See 84 F ed. Reg

. at 53993 (ex plaining that the r eview the Proclamation requires “is separate and independent from the review and determ i n a t i on required by other 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 inadmissibility

of an alien”).

I n fact, the Supreme Court in Tru mp v

. Hawaii rejected the very ty

p e o f arg u ment the majority a d o pts. There, the plaintiffs arg ued that a proclamation nullified p a rt s of the I NA because Cong ress in that statute h a d a l r eady addressed “the p r oblem o f aliens seeking e ntry f r o m c ountries that do
not share sufficient information.” 138 S. Ct. at 2411. The Supreme Court held there w as no such c onflict with the I N A because § 1 182(f) “ vests authority in the President to impose additional limitations o n entry bey o n d the g rounds for

ex c lusion set forth in t h e I NA.” Id. at 2412 ( emphases added); see a lso id. at 2408 (“I t is therefore unsurprising that

we have previously observed that § 1182(f) vests the President with ‘ample power’ to impose entry restrictions in addition to those elsewhere e numerated in the I NA.”) (quoting Sale , 508 U.S. at 187).

There is n othing unusual about Proclamation No. 9945 creatin g an independent—and y es, dispositive—g round forD O E # 1 V

. T R U M P 63

inadmissibility

, w hen that is the who l e p oint of § 1182(f). W h at the maj o r i t y t r e ats as a “ violat[ ion] of the I NA,” Maj. Op. 26, is just § 1 182(f) of the I NA in operation, as Trump v

. Hawaii makes plain. T h e majority today simply r esurrects the same “cramped” reading of § 11 8 2 (f) that Trump v

. Hawaii rejected. 138 S. Ct. at 2412. 1

I mplicit in the majority ’s reasoning is the view that each public charg e factor must be g iven some weig ht, so that if any

one consideration is dispositive, it unravels the statutory scheme. This interpretation has no basis in the statute. The I NA does not assign t he p ublic c harg e factors any w eig ht
among themselves or in relation to independen t elig ibility requirements. A n d as we recently ex plained, the public charg e “factors are not ex haustive,” and the Ex ecutive “may add to them.” City & Cty. of S.F.
, 944 F .3d at 798. “ Other f a c tors may be considered as well, g iving offici a l s considerable discretion in their decisions.” Id. at 792; s ee also id. at 796 (“[ D] ifferent factors have been weig h ted more or less heavily

at different times.”).

1 Un su rp risin g ly

, p rio r p ro clam a t io n s h av e ad dressed g ro u n d s of in a d m i s sib ility th at th e INA alread y p ro v id ed f o r to s o m e ex t en t. Co mp a re 8 U.S.C. § 1 1 8 2 (a)(2 )(h ) (ren d erin g in ad m issib le “[ a ] n y alien

w h o co m m its o r c o n sp ires to co m

m it h u m an traf f ick in g o f f en ses”), with P res. P ro cl. No

. 8 3 4 2
, 7 4 Fed

. Reg

. 4 0 93 (2 0 0 9 ) (b arrin g en try o f certain
g o v ern m en t o f

f icials w h o h av e “ im

p ed ed ” o r “ f

ailed to im

p lem en t ”

an titraf f ick i n g ef f o rts); co mp a r e a lso 8 U.S.C. § 1 1 8 2 (a)(3 )(E) (ren d erin g in ad m issib le N azi- af

f iliated alien s w

h o “ o rd ered

, in cited

, as s i s ted

, or

o th erw i se p articip ate d i n th e persecu tio n o f an y p erso n b ecau se o f race, relig io n , n atio n al o rig in

, o r p o litical op in io n ”), with P res. P ro cl. No

. 8 6 9 7
, 7 6 Fed

. Reg

. 4 9 27 7 (2 01 1 ) (b arrin g en try o f an y alien w h o “ o rd ered

, assisted

, aid ed an d ab e t t e d

, co m m itted or oth erw ise p articip ated in

. . . w id esp read o r sy stem atic v io l en ce” b ased o n p ro tected ch aracteristics).D O E # 1 V

. T R U M P 64

The majority c omplains that the public charg e statute “lists various factors that the c o nsular office can consider” and “ [ h] e alth insuranc e i s not among them.” Maj. Op. 26. B u t a ga i n, that is the ex pected result of a statutory scheme that allows the President to impose “additional limitations on entry .” Hawaii
, 138 S. Ct. a t 2412. The majority ’s q uarrel is thus r eally w ith § 1 182(f) itself, not any actual distortion o f the I NA. There is no co n f

l ict between a public charg e provision that is “flex ible” and “ambig uous,” City & Cty. of S.F.
, 944 F .3d at 798, and a P r o c l a m ation premised on the “clear” and “ comprehensive d e leg ation” that Cong ress conferred on the President in § 1182(f), Hawaii
, 138 S. Ct. at 2408–09.

2

Unlike the district court, the majority ’s lead point is that Proclamation No. 9945 “conflicts with the Violence Ag ainst W o men Act’s (‘VAW A’) amendments to th e I NA.” Maj. Op. 22. These a mendments provide that the I NA’ s p u blic charg e provisions “ shall not apply ” t o a n a l ien who is the victim of certain crimes. 8 U.S.C. § 1182(a)(4)(E); see also id. § 1154(a)(1)(A)(iii)–(v i ). Once ag ain, the majority f ails in its effort to save the district court’s injunction.

As a n initial matter, n o plaintiff in this case claims that their relatives are subject to the VAW A ex emption. VAW A is thus irrelevant to this litig ation and plaintiffs would lack standing to invoke it. E.g.
, Easter v. A m. W

. F i n

. , 381 F .3d 948, 962 (9th Cir. 2004); Ha l e t v. W end Inv. Co.
, 672 F .2d 1305, 1309 n.2 (9th Cir

. 1982). B u t in any event, the Proclamation does not conflict with VAW A f or the obvious

reason that a petitio n e r who meets V AW A’s elig ibility requirements is not ther e b y entitled to admission into theD O E # 1 V

. T R U M P 65

United States. Rather, that person is merely ex empted from the public charg e lim i tations. 8 U.S.C. § 1182(a)(4)(E). Nothing in V AW A or the I N A requires the Pre s i d en t to impose a VAW A-like carve-out on other g rounds for ina d m issibility

, and n o thing in the I NA imposes such a restriction on the President’s broad authority under § 1182(f).

The majority thus badly errs in c o n c l u d ing that the Proclamation “contravenes the well-settled principle that the President’s powers a

re e x ecutive, not leg islative in nat u re,” because the President canno t “repeal statutes.” Maj. Op. 23 (quotations omitted). Such conclusory statements o f constitutional law h ave nothing to d o w ith what the President has done here. VAW

A is a limited ex ception to one g r ound for inadmissibility

, n ot an o verarching limit on the President’s ex pansive a uth o rity under § 1182(f) or his independent constitutional powers in this area. 2

3

The maj o r i ty a lso holds that “[ t] he g overnment has not submitted any evidence” of likel y success on the plaintiffs’

2 I also f i n d u n f ortu n ate th e m aj ority ’ s attem p t to bo o st its h o ld in g b y assertin g th at th e g o v ern m en t “ h as m a d e n o sh o w in g at all” o n V A W A

an d “ d o es n o t resp o n d to th e m erits o f th is ch allen g e.” Maj . Op . 2 2 , 2 3

. T h e d istrict co u rt, as n o ted

, d ev o ted on ly a f ew scan t sen ten ces to VA W A

. Ev en s o, t

h e g o v ern m en t ex

p ressly arg u ed in th i s co u rt th at th e P ro clam atio n did n o t co n f lict w ith VAW A b ecau se Tru mp v. Ha wa i i

“ rej ected th is arg u m en t, h o ld i n g th at ‘ § 1 1 8 2 (f ) v ests th e P resid en t w i th

‘ am p le p o w er’ to im

p o s e en try restrictio n s in ad d itio n to th o se elsew h ere

en u m erated i n th e INA .’ ” Rep ly Br. 5 (q u o t i n g 1 3 8 S. Ct. at 24 0 8) (em p h asis om itted ). Mo reo v e r , VA W A is p art o f th e p u blic ch arg e p ro v isio n an d th e g o v ern m en t h as arg u ed at len g th w h y th e P ro clam atio n d o es n o t co n f l ict w ith th at p ro v i sio n

as a w h o le.D O E # 1 V

. T R U M P 66

assertion that “the Proclamation v iolat e s t h e ” A f f o rdable Care Act (ACA). Maj. Op. 24. That is rather harsh, considering that the district court did not r each this issue. Doe # 1
, 418 F

. Supp. 3 d at 597 n.6. The plaintiffs devoted less than a pag e of their stay opposition to the ACA, a nd the g overnment then addressed the issue in its reply brief. All the same, the notion that the Proclamation conflicts with the ACA is man i fe s t ly incorrect.

The A CA authoriz ed the cre ation of State-based health insurance marke t s , called “ex chang es,” “where people can shop for insurance, usually online.” King v. Burwell , 135 S. Ct. 2480, 24 87 (2015) (citing 42 U.S.C. § 18031(b)(1)). Under the AC A
, “individuals with household incomes between 100 percent and 400 percent of the f e deral poverty line” may purchase subsidiz e d insurance plans w ith the h elp of “refundable tax credits.” I d. These tax credits a re available to “lawfully present” aliens whose incomes are less than 100 percent of the poverty line and who are also inelig ible for Medicaid. 26 U.S.C. § 36B ( c )(1)(B ). Neither subsidiz ed insurance nor Medicaid satisfy the Proclamation’s requirements. Under the ACA, consumers can also purchase unsubsidiz ed insurance o n State ex chang es. 42 U .S.C. § § 1 8031(d)(2)(A), 10832(b). Such unsubsidiz ed p lans d o satisfy Proclamation No. 9945. S e e 84 F ed. Reg

. at 53392. I n all c ase s , however, an immig rant must be “lawfully present” and a resident of a State before he c an purchase a ny health i n surance from that State’s ex chang e, whether subsidiz ed 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 majority claims that because the Proclamation

ex c ludes s u bsidiz ed plans under State e x chang es, “an immig rant attempting to leg ally e n t e r the United States willD O E # 1 V

. T R U M P 67

not have access to A C A t a x credits as Cong ress intended.” Maj. Op. 25. That is a non sequitur

. A s the majority acknowledg es, under the AC A
, subsidiz ed plans a re only available to indi v iduals “lawfully present” in the United States. 26 U .S.C. § 3 6B (c)(1)(B ); 42 U.S.C. § 18032(f)(1)(A)(ii). The ACA thus does not cover persons who are subject to the Proclamation, who are not lawfully present here. Nor does the Proclamation prevent individuals,

once they are “lawfully pres e n t ,” from seeking subsidiz ed insurance under State ex chang es. And the ACA say s nothing about who may or may not enter this country

. That Cong ress has created a benefit f

or individuals who h ave “lawfully ” entered the Unite d States does n ot then g ive persons a rig ht to enter the country

to obtain those benefits.

The apparent sug g estion in the majority opinion is that the Proclamation will prevent the entry of all persons who could then later take advantag e of the subsidi z ed plans that the ACA makes available to i m mig rants who are “lawfully present.” B ut as discussed a bove, the Pro c l a mation only

covers a subset of immig rants. T h ere are many other immig rants, including p ersons already lawfully present in the United States, who can try to take a d v a ntag e of subsidiz ed insurance options. And that is to say nothing of the persons wh o a r e s u

bject to the Proclamation, who can meet its elig ibility requirements, a nd who can then pursue subsidiz ed health insurance o nce they arrive. The sug g estion that the Proclamation somehow drains a n a spect of the ACA of all function is thus obviously not true.

The majority n ex t c laims that althoug h immig rants can satisfy the Proclamation by purchasing unsubsidiz ed insurance o n State ex chan ges, because immig rants must be “lawfully present” in the United States to buy such insurance,D O E # 1 V

. T R U M P 68

these immig rants are placed in “ a Catch-22.” Maj. Op. 25. B y the majority ’s reasoning

, such p ersons “cannot obtain an ‘approved’ unsubs i d iz e d insurance plan unless they have b e en leg ally admitted, but they cannot be leg ally admi t t e d unless they have obtained an ‘approved’ insurance plan.” Id. This theory collapses b e c ause the latter part is not true. Under the Proclamation, the immig r ant must only show that he “ will be covered by

approved health insurance .

. . within 30 day s o f the alien’s entry i n to the United States.” 84 F ed. Reg

. 53992 (emphasis added). The majority ’s “Catch- 2 2” thus relies entirely

on a misreading of the Proclamation.

I V

The g overnment h a s not only made an overwhe l m ing showing of likely success on the merits, it has also shown that it w ill be irreparably h armed absent a stay of t he district court’s injunction. Nken

, 556 U.S. at 433–34. The majority ’s determination otherwise depends on it p l ac ing plaintiffs’

ex p ert and an amicus brief o n hig her footing than the President of the United States.

A

The harm that the court’s injunction inflicts is irreparable and r e al

—

to the interests the Ex e c utive seeks to promote throug h the Proclamation and to the core separati o n o f
powers p rinciples that make the Proclamation la w fu l

. The injunction is a severe affront to the President’s authori t y , itself a n irreparable injury

. See Maryland v. King
, 133 S. Ct. 1, 3 (2012) (Roberts, C.J
., in chambers) (“[ A] ny time a State is enjoined by a court from effectuating s t a tutes enacted b y representatives of its people, it suffers a fo rm of irreparable injury .”) (quotations omitted).D O E # 1 V

. T R U M P 69

The majority downplay s the g overnment’s institutional injury on the theory that the Proclamation’s lawfulness “is at the core of this disp u t e, t o be resolved at the merits stag e.” Maj. Op. 1 6. B ut by this log ic, a c o urt o f appeals could never stay a district court’s injunction until the merits were finally adjudicated, which is n o t the law. The merits of a case o f

course are at issue at the “merits stag e.” B ut the merits a re relevant now too, because we a r e required to evaluate the likelihood of s uccess on the merits at the stay stag e. See Nken

, 556 U.S. at 434. I n this case, the “clear s t a tutory lang uag e” of § 1182(f) reflects a “comprehensive deleg ation” of “sweeping authority ” to the E x e cutive, Hawaii
, 138 S. Ct.
at 2408, 2 413, who Cong ress e ntrusted with the important mission of suspen d i n g the entry of aliens who “would be detrimental to the in t e r e s t s of the United States.” 8 U .S.C. § 1182(f). The court’s d eprivation of this fundamental power is an acute institutional injury that is not made more palatable by telling the g overnment it must wait m a n y m o n t hs, if not

m u c h l o n g er, for a f

inal decision on the merits. See Maryland , 133 S. Ct. at 3.

The majority discounts the go v ernment’s institutional injury on the theory that if such injury were credited, “no act” of the President could be e n j oined b ecause “the irreparable harm standard [ would be] s a t i s f ied by the fact o f e x ecutive action alone

. ” Maj. Op. 16. That is a mischaracteriz ation. The majority can make this sug ge s t i o n only because it took th e stay factors out of order and addressed the harms before the merits. W h e r e , as here, the g overnment has shown an overwhelming likelihood of success on the merits, enjoining it from enforcing its p lainly lawful policy is a constitutionally sig nificant injury

.D O E # 1 V

. T R U M P 70

I nstitutional injury aside, the g overnment has demonstrated that its inability to e n force the Proclamation pending a ppeal will c ause irreparable harm. See City & Cty. of S.F.
, 944 F .3d at 806 (finding irreparable h arm where “the preliminary injunctions will force D HS to g rant status to those not leg ally entitled to it”). The President determined in Proclamation No. 994 5 t h at immig rants “who h ave not demonstrated any ability to pay for their” medical care impose si gnificant and unwarranted costs on the American healthcare sy stem. 84 F ed. R eg. 5 3 9 91. The Proclamation does not apply once an immig ra nt h as been admitted to the United States, so it can never apply to aliens a dmitted during
t he pendency of this litig ation. See 84 F e d. R eg. at 53992–93. The costs t h e y i mpose w hile the injunction remains in p lace are thus unrecoverable, creating irreparable harm. See California v. A zar , 911 F .3d 55 8
, 5 8 1 ( 9 th Cir. 2018).

The scope of the injunction h ere o nly conf i rm s both the fact of irreparable harm and its mag nit u d e

. The injunction applies worldwide and, by the majority ’s estimation, “ would
neg atively affect approx imately 6 0 % of al l i m m ig rant visa applicants” and “375,000 immig rants each y ear.” Maj. Op. 1 9

. This only “ prove[ s] [ the g overnment’s] point,” confirming that the harm “is not on l y irreparable, but sig nificant.” City & Cty. of S .F.
, 944 F .3d at 806. Nor is the resulting injury limited to “ third parties,” as the majority
sug g ests. Maj. Op. 19. The g overnment funds considerable aspects of o ur healthcare sy stem, and it is undeniable that the uninsured w ould require the g overnment to “incu r some otherwise avoidable financial c osts if a stay is d e nied.” Golden G ate R est. Ass’ n v

. C ity & Cty. of S.F.
, 512 F .3d 1112, 1125 (9th Cir. 2008 ) ; s ee a l so Azar
, 911 F

. 3d at 581D O E # 1 V

. T R U M P 71

(ex plaining that “ economic harm” is “irreparable” when th e g overnment “will not be able to recover monetary damag es”).

Contrary to the majority opinion, the harms here are also
not “purely monetary

. ” Maj. Op. 18. The Proclamation identifies n on-monetary harms that the uninsured impose, such as increased strain o n “publicly f unded prog ra m s” a

nd overreliance on emerg enc y r ooms, “causing overcrowding and d elay s f

or those who truly need emerg ency services.” 84 F ed. Reg

. 5 3991. These to o a re irreparable harms that
cannot be avoided absent a stay of the injunction. See G olden Gate R est. Ass’n
, 512 F

. 3d at 1 1 2 5 ( gr anting stay because

“ i ndividuals without health coverag e are sig n ificantly less likely to seek timely medical c ar e than those with health
coverag e,” and consequently a r e more likely to “seek
emerg ency treatment” f

rom g overnmen

t

- f u n d e d hospitals a

nd clinics).

B

The majority opinion disbelieves the go v e rnment’s asserted harms because while the Proclama t i o n states that “immig rants are about three times more lik el y than United States c itiz ens to lack health insurance,” 84 F ed. Reg 53991,” th e r e is, the majority complains, “no citation in the Proclamation f

o r this statistic.” Maj. O p.16. This is of a piece with the majority ’s c riticism that the Proclamation lacks “data-driven analy sis” or a “further cost quantification” (an apparently technical requirem e n t that the majority opinion leaves undefined). Id. at 1 7, 30. The majority ’s failure to g ive the Ex ecutive any

deference is clear leg al error.

A presidential proclamation is n ot a s e c o n d-g rade math assig nm e n t, where a student must “show his work” to g etD O E # 1 V

. T R U M P 72

credit. I n T

rump v. Hawaii
, the Supreme Court found it “questionable” whether the Presi d e n t operating under § 1182(f) was in any way required to “ex plain [ his] finding [s] with suffici e n t detail to enable judicial review.” 138 S. Ct.
at 2409. B ut “even assuming that some form of review is appropriate,” the Supr e m e Court still rejected “plaintiffs’ request for a searching inquiry into the persuasiveness of the President’s justifications,” which wou l d b e “ i n consistent with the broad statutory tex t and the deference traditionally accorded the President in this sphere.” Id.

The majority ’s demand that the g overnment ex p l ain the Proclamation’s f

actua l f inding s, Maj. Op. 15–16, is thus directly contrary to the Supreme Court’s admonition that the President is “ ‘not required to c onclusively link all o f t h e pieces in the puz z le before [ courts] g r ant w e i gh t to [ his] empirical conclusions.’” Hawaii
, 138 S. Ct. at 2 409 (quoting Holder v. Humanitarian Law Project
, 5 61 U.S. 1, 35 (2010)). The Constitution does not require the President to eng ag e in the majority ’ s preferred “data-driven anal y s is” or “cost quantification,” nor d oes § 1 182(f). M a j

. Op. 17, 30. The
court today t h u s shows a profound disrespect to the Ex ecutive, c ontrary to precedent. And the majority ’s token

a c knowledg ement that § 1182(f) “ ‘ ex udes deference to t h e President,’” Maj. Op. 28 ( q u oting Hawaii
, 138 S. Ct.
at 2408), is no substitute for the actual deference owed to the President’s finding s when those finding s are under review.

The majority opinion also errs in a ttempting to disting uish Trump v. Hawaii on the g round that the proclamation 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 “comprehensive” inter-ag ency r e v i ew. Maj. Op. 18 (quotations omitted). As discussed above, Trump v. Hawaii rejected the premise that these finding s were even necessary

.D O E # 1 V

. T R U M P 73

See 138 S. Ct. at 2409 (rejecting “plaintiffs’ request for a searching in q u iry into the persuasiveness of the President’s justifications”). Nor did the Supreme Court in Trump v

. H a w aii sug g est that the quantum of finding s at issue t h e r e represented a constitutional or statutory f loor. I nstead, Trump

v. Hawaii referenced p rior presidential proclamation s that

were just several sentences long

. Id. As was t h e case with the p r o clamation in Trump v. Hawaii itself, Proclamation No. 9945 is “more detailed” than t h o s e. I d. The notion that Trump v

. Hawaii somehow supports today ’s decision is thus plainly incorrect.

F inally

, the m a

j ority seriously errs in sug g e sting that because the g overnment is seeking a stay of an injunction, which is an ex erci s e o f the court’s “discretion,” the
g overnment is not entitled to the d e fe r e nce that Trump v

. Hawaii commands. Maj. Op. at 17. T he procedural p osture of a c ase is not a license to disreg a r d t h e fundamental principle that “ ‘it is not the judicial role

. . . to probe and test the justifications’ of immig ration policies.” H a w aii
, 138 S. Ct. at 2419 (quoting Fiallo v. Bell, 430 U.S. 787, 799 (1977)). The court’s a

pproach loads the dice ag a inst the g overnment any time a d istrict court enjoins a g overnment p olicy

. Simply put, the deference t h a t § 1182(f) “ex udes,” id. a t 2 408, does
not evaporate whenever a sing le district court has e njoined a presidential policy

and the g o vernment is seeking a stay

.

I n any event, for all the c o urt’ s r e f u sal to a ccept the Proclamation’s determination that immig rants a re three times

more likely than citiz e ns to lack health i n s urance, the plaintiffs do not even contest this point. I n fact, a r eport that pla i n t i ffs’ own ex p ert authored (which is r eferenced in his

ex p ert materials in this case) makes the very s ame observation: “ [ A] lmost half of all immig rants—here definedD O E # 1 V

. T R U M P 74

as noncitiz en immig rants—are uninsured, a level that is about three times hig her than for n ative-born citiz ens.” L eig hton Ku, W hy Immigrants Lack Adequate A ccess to Health Care and H ealth Insurance (Mig ration Policy I nst., Sept. 1, 2006).

C

I nstead of g iving the P r e sident any deference, the majority makes some finding s o f its own and then treats those

as authoritative. Contrary to the Proclamation, the maj o r ity tells us there is no irrepa r a b le harm because, in fact, “the i m p a c t o f u n i n s ured immig rants on uncompensate d h e a l t h c a r e costs is minimal.” Maj. O p. 18. F or this, the majority relies

on o n l y a sing le source: the declaration of plaintiffs’ ex pert, Dr. L e ig hton Ku. See id. at 17. B ut ex udi ng deference to Dr. Ku is not what the law allows.

Dr. Ku is a p rofessor of h ealth polic y

. T h e only prior

ex p ert work he discloses is on behalf o f p l a i n t i ffs who a re challeng ing various immig ration policie s f rom the current presidential a dministration. Without any basis at all, Dr. Ku opines that “the President and the State Department, which is charg ed with implementing the [ P] roclamation, failed to conduct a ca r eful and reasoned analy sis of the policy

. ” Dr. Ku criticiz es the President for acting “without a reasoned approach to administrative rulemaking ,” faulting the Ex ecutive for “fail[ ing ] to carefully consider t h e r a m i f i cations of this p olicy .” Dr. Ku f

urther maintains that “if the President is concerned about reducing u n c o mpensated care a s

ex p ressed in the [ P] roclamation, then it would make more

s e nse to

. . . ex pand[ ] Medicaid or o ther forms of h e a l t h insurance, such as the hea l t h insurance marketplaces.” I t should g o without say

ing that the Constitution does notD O E # 1 V

. T R U M P 75

enshrin e the unsupported leg al opinions and transparent policy preferences of an unelected academic.

The majority ’s fealty

to Dr. Ku is even more remarkable when one ex amines his conclusion that uninsured immig rants do not burden the American healthcare sy stem. Dr. Ku asks in his declaration: “[ W ] hat is the value of uncompensated

care p rovided to leg ally admitted immig rants who mig ht have been a ffected by this [ Proclamation] ? ” Dr. Ku th e n ad m its
t h at “ I am not aware of any information that accurat e l y

answers this question .” Id. (emphasis a d d ed). That is enoug h to disreg ard his opinion.

Dr. Ku th e n p roceeds to come up with an answer to the question on his o wn. Bu t i n arriving at the fig ures that the majority treats as definitive, Maj. Op. 16, Dr. Ku c o m pares “recent immig rants” (those “who entered the U.S. within five
y ears” o f 2017) to “not recent immig r a nts” (“U.S. borncitiz ens and immigrants who have been i n the U.S. for five
y ears or more” (emphasis added)). This comparison does not

even try to measure the cost of care p r o v i d e d to uninsured immig rants in the U nited States. No wonder even Dr. Ku in his own d eclaration “recog niz e [ s] that this is n o t an ideal analy sis.”

An ex pert who has disqualified h imself under Daubert v

. Merrell Dow Pharmaceuticals

, I n c

. , 509 U.S. 579 (1993), th r o u gh his own admissions should n ot be the basis for enjoining a lawful presidential proclamation. I f nothing else is c lear under the Constitut ion and Supreme Court case law inter p reting § 1182(f), it is that a professor’s self-described “not

. . . ideal a

n aly sis” sho u l d n o t win out over the conclusions of the Presid e n t. T h e majority ’s elevation o f Dr. Ku’s declaration over the E x ecutive’s determinations inD O E # 1 V

. T R U M P 76

the Proclamation is a radical departure f rom settled law a

nd a serious threat to the democratic process.

The majority also r efuses to g ive deference to the President based on its d etermination that “immig rants a re

more likely to represent favorable insurance risk[ s] in [ ACA] marketplaces b ecause they tend to be relatively healthier than the normal insured population a nd use fewer healthcare g oods and services.” Maj. Op. 17 (qu o t a t ions omitted). The majority purports to locate this conclusion in “[ t] he re co rd” in this case. Id.

B u t what the majority cites on this point, and what it calls “the record,” is r eally just an amicus brief f rom twenty -one States, the District of Columbia, and N ew Y ork City

, which

was submitted in the district court. A nd w h at that amicus brief c ites are the comments these same States s ubmitted in
response to a State Department n otic e describing h ow the Department would implem e n t the Proclamation. These comments did not disclose any underly ing data or undertake
any apparent study of immig rant h ealthca r e costs. See, e.g. , C o v e red Cal. Cmt. On DOS-2019-0039-0001 (Oct. 31
, 2 0 1 9 )

, a v a i l a b l e a t : h t t p s : / / w w w

. r e g u l a t i o n s

. g o v / d o c u

m e n t ? D = D O S

2019-0039-0241 (California’ s three-and-a-half pag e letter). B ut r eg ardless, i t is quite circular for administrative

comm ents that unsuccessfully “urg e[ d] the withdrawal” o f Proclamation No. 9945, id.

, to wind up as authoritative when cited in the same commenters’ amicus brief challeng ing that
very Proclamation.

I n short, the majority ’s determination that the g overnment has not made a showing of irreparable h arm depends on its refusal to g ive the President any deference a t all, contrary to precedent.D O E # 1 V

. T R U M P 77

V

The g overnment has shown an overwhelming likelihood of s u ccess o n the merits, as well a s irreparable h arm. These fac t o r s are “the most critical” in the stay analy sis, and only “[ o] nce a n applicant satisfies” these factors will t h e court consider “harm to the opposing party and weig h ing the public interest.” Nken

, 556 U .S. at 434–35. Considering those third and fourth st a y factors only c onfirms that the court should have issued a stay

.

A

The majority opinion strives to c reate the impression that the nam e d plaintiffs’ relatives were on the cusp of entering the United States and that only the Proclamation is holding them back. The majority thus asserts that “[ t] he individ u al [ p] laintiffs are seven U.S. citiz ens” whose “family members have successfully completed the traditional steps for obtaining an immig rant v isa.” Maj. Op. 1 2

– 1 3. B ut that is
untrue: most of plaintiffs’ r e latives do not even h ave visa interviews scheduled and some have not su b m i t ted r equired documentation. 3 The majorit y f u r ther states that plaintiffs’ “family members had qualified for entry und e r e s tablished immig rati o n p o l i cy .” Id. at 36. That is also untrue. Nor is there any basis for the majority ’s scaled back assertion that the named plaintiffs’ relatives were “otherwise l i k ely

3 T h e o n ly ex cep t io n is th e relativ e o f o ne n am ed p lain tif f w h o receiv ed an im

m ig r a n t v isa a

fter th e district co u rt issu ed its in j u n ctio n

. P lf s.’ No t i c e o f A d ditio n al Facts, Do e # 1 v. Tru mp , Case No

. 3 :1 9

- cv

0 1 7 4 3

- SI (D. Or.), ECF N o

. 1 23

. B u t ne i t h er th e P ro clam atio n n or th e d istrict co u rt’ s i n

j u n ctio n n o w h av e an y b earin g o n th is p erso n

. T h is sectio n w ill th u s d iscu ss on ly t h e p lain tif

f s w ith an y p o ten tial f

u tu re h arm , ev en if th at h arm

is u ltim ately

sp ecu lativ e.D O E # 1 V

. T R U M P 78

qualified for entry under § 1182(a)” f o r a d m ission into the United States. Id. at 21. W ith the one e x ception noted above,

see ante at 77 n.3, it is entirely speculative whether the named plaintiffs’ relatives will meet the numerous elig i b ility requirements and w ould be a llowed to enter this country at all, reg ardless of Proclamation No. 9945.

The majority fails to disclose that the named plaintiffs have only received approved I -130 petitions. A United States

c i tiz en f iles an I

- 130 p e tition with the U.S. Citiz enshi p a n d I m m i g ration Services (USCI S) or a consular official, on behalf of a relative who is see k i n g t o become a p ermanent resident in the U n i t ed States. 8 U.S.C. § 1154(a)(1)(A)(i); 8 C.F .R. § 204.1(a)(1). Approval o f a n I

- 130 petition is “ only the first step in the p r ocess” toward becoming a lawful permanent resident. Montoy a 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).

O n l y then, after the alien proceeds throug h the queue, does the alien apply for a visa and the United States beg in its review o f any request for admission. Kerry v. Din
, 135 S. Ct. 2128, 2 131 (2015) (plurali t y op.) (“I f and when a petition is approved, the alien may apply for a visa by submitting the

r e quired d ocuments a

nd appearing a t a United State s Embassy or consulate for an interview with a c onsular officer. B efore issuing a visa, the consular officer must ensure the alien is not in a d m i s s ible under any provision of the I NA.”) (citations omitted); Montoya
, 7 4 4 F. 3 d at 616. As w e have
recog niz ed, “ [ t] he wait time for these immig rant visas can be considerable.” Landin-Molina v. Holder

, 580 F .3d 913, 920 n.8 (9th Cir. 2009); see also S cialabba v. Cuellar d

e Osorio
, 573 U.S. 41, 50 (2014) (p l u r a l ity o p.) (“All of this takes time—and often a lot of it

. . . . A family -sponsoredD O E # 1 V

. T R U M P 79

immig rant may stand in line for y ears—or even decades—just waiting for an immig rant visa to become available.”). There

are also my

riad reasons why a p erson may ul t i m a t ely be denied entry

. See 8 U.S.C. § 1182(a); 22 C.F .R. § 42.62. The Proclamation, of course, ensures t h a t all these other requirements for admission remain intact.

As the foreg oing confirms, approval of an I -130 petition “cannot be the equivalent o f inspecti o n a n d a uthoriz ation to enter and remain in the United States.” Vasquez de Alcantar

, 645 F .3d at 1103. I t “ d oes not confer any chang e in status.” Id. ; see also Ngongo v. Ashcroft

, 397 F .3d 821, 823 (9th Cir. 2005). I nstead, we h a v e ex p lained, approval of an I -130 petition “ does no t raise [an] alien’s ex pectations” for permanent residence “ above t h e l e vel of hope.” Montoya
, 744 F .3d at 617 (quotations omitted). The majority therefore

errs in sug g esting that plaintiffs’ r elatives were qualified to become lawful permanent residents or w e re about to reach that status, but for the Proclamation.

The named plaintiff

s ’ declarations only confirm this. W h en the district c o urt issued its i n j unction, none o f the plaintiffs’ relatives had consular interview dates scheduled, and seven such r elativ es a r e still awaiting interview dates. Doe # 1
, 2020 W L 1689727, at *6–7. I nterviews aside, various plaintiffs were still working to submit the appropriate paperwork to apply for a visa when the injunction w as issued. See Doe #2 D e c l

. ¶ 7 (“[ W ] e are c urrently working on the collection of information a nd docum e n ts

. . . .”); id. ¶ 9 (“I will need a joint sponsor in order to complete the affidavit o f support section of m y parents’ immig r ant visa.”); Doe #3 Decl. ¶ 9 (“[ M] y

husband and I

have b een working to g ather the documents required fo r consular processing

. Several times, we thoug ht w e had all of the paperwork submitted, butD O E # 1 V

. T R U M P 80

the g overnment then requests a d ditional, and different information from us.”); Ramos Decl. ¶ 1 2 (ex plaining that she is “in the process of g athering all the documents required by the consulate”). A nd many months later, at least t w o o f plaintiffs’ relatives a

r e still “collecting the necessary information.” Doe # 1
, 20 2 0 WL 1689727, at *6. This only confirms that plaintiffs’ relatives are still in the middle of the visa process.

Equally misplaced is the majority ’s emphasis on cert ain family members who ha ve received provisional I -601A waiv er s

. See Maj. Op. 2 1. I -601A waivers are available to aliens in the consular visa p rocess who h ave been unlawfully present in the United States and w ho are immediate relatives of U.S. c i t i z ens. See 8 U.S.C. § 1 182(a)(9)(B )(i); 8 C.F .R. § 212.7(e). The I -601A waiver was developed to ex pedite the interview process by allowing ap p licants “who r equire a waiver o f inadmissibility for unlawful presence to a p p l y for such a waiver in the U.S. before they d e p art for an immig rant

v i sa interview a t a U.S. embassy or consulate abroad.” Romero v. Barr
, 937 F. 3d 282, 2 8 7 n.2 (4th Cir. 2 019) (emphasis added).

The g rant o f an I -601A waiver, like the approval of an I

130 petition

, i s thus a prefatory mechanism to facilitate the visa applica t i o n p r ocess. I t does not mean that plaintiffs’ relativ e s were “otherwise likely qualified” for admission to the United States. N or can the majority reasonably maintain that the Proclamation will re s u lt in family separation for
persons with I -601A waivers. Maj. Op. 21. O n ce ag ain, because there is no indication t h a t plaintiffs’ relatives a re otherwise admissible, it is impossible to say that any family separation is due to the Proclamation, as opposed to the

numerous o ther requirements th at o ur immig ration lawsD O E # 1 V

. T R U M P 81

impose. Given th at plaintiffs’ relatives have not completed the visa p r ocess, the Proclamation i s not the immediate (or future) cause of any

alleg ed family

separation.

Finally

, it also is not apparent that plaintiffs’ f am i l y members will be unable satisfy the Proclamation. The district
court enjoined the Proclamation before it could t a k e effect, allowing no chance for any person to even attempt to satisfy the Proclamation’s requirements. The Proclamation allowed the Secretary of State to “establish standards a nd procedures”
to g overn consular officers’ a p p lication of the Proclamation, 84 F ed. Reg

. 53993; due to the i n j unction, we cannot know h ow a ny such g uidance would affect consular officers’ determinations.

Althoug h the majority clai m s the plaintiffs “submitted evidence” that their relatives are u n a b l e to meet the Proclamation’s requirements, Maj. Op. 19
, m a n y of the plaintiffs’ declarations provide no d e t a i l s a b out their finances, the amount of income they or their relativ e s have available,

or the prices of qualify ing plans under the Proclamation. The Proclamation also g ives the Secretary of State or his desig nee the ability to e x e mpt a liens “whose entry wo u ld be in the national interest,” as d e termined on a “case-by -case basis.” 84 F ed. Reg

. 53993. F or all thes e reasons, it is entirely speculative h ow the Proclamation will a ffect any one who is still g oing throug h the immig ration process.

I n short, the sincere “ hope” that plaintiffs’ relatives w i l l qualify f or leg al status is no substitute for actual evidence that plaintiffs’ relatives a

re entitled to visas but f or the Proclamation. On that issue, there is no evidence at all.D O E # 1 V

. T R U M P 82

B

The majority creates another misimpression in p urporting
to justify the injunction “based on evidence in the record” that the “Proclamation would cause sig nificant harm to 2 1 states, the District of Columbia, and N ew York City if allowed to g o into e ffect ther e

. ” M a

j

. Op. 37. The majority tells u s that “[ t] he record demonstrates” the “sig nificant harm” these jurisdictions would suffer if the Proclamation is allowed to g o into effect. I

d. at 34–35 (emphasis a dded). And the majority opinion fu r ther informs u s this “ evidence [ was] c redited b y the dis t r i c t court, and that “[ t] h e g overnment does not seriously contest this evidence

. ” I d. at 35 (emphases added).

These statements are, reg rettably , quite misleading

. The only source fo r the cited “evidence” is the amicus brief that twenty -one States, the District of C o l u mbia, and N ew York City f iled in the district court. T h e S u p r eme Court has instructed that “the stated desires of amici are no substitute for a class action, are not evidence in th e c a s e , a nd d o not influence our decision; we e x amine an am i c u s curiae brief solely for whatever aid it provides i n a naly zing the leg al questions before us.” Sony Corp. o f A m

. v

. Universal City Studios, Inc.
, 464 U .S. 417
, 434 n .16 (1984). T he majority

o p i n i o n violates these fundamental precepts. B u t it is, unfortunately , more problematic than that.

The “evidence” of “sig nificant harm” to the jurisdictions that joined the amicus brief c o nsists o f the following : thousands of persons in these States become lawful
perman e n t r esidents each y ear, and immig rants “are v ital to the economic, civic, and social fabric of our states and city

. ” Maj. O p. 3 5 (quotations o m i t t e d ). T h ese assertions cannot justify the district court’s injunction. I t is of course true thatD O E # 1 V

. T R U M P 83

immig rants are vital to the economic and cultural life of our States and c ities. B ut by thi s l o g ic, any federal policy that reduces immig ration could be en j o i n ed on that basis, g iving States and localities the power to neg ate federal immig r ation policy

. The acknowledg ed c ontributions that immig rants make to our States are th u s n ot g rounds for enjoining the Ex ecutive B ranch f

r o m recalibrating immig ration rules in line with the Preside nt’s lawful policy g oals. And it cannot be that State or local g overnments that oppose a pre s i dential policy can have the policy enjoined throug h the commonplace act of joining a State-led amicus brief.

C

F or all the reasons I have set forth, the public interest also strong ly supports stay ing the injun c t i o n. Nken

, 5 56 U.S.
at 434. As we have recog niz ed, the g over n m e nt’s interests and the public interest tend to merge s ince “responsible public officials

. . . h ave already con s i d e r e d ” the public interest in enacting the policy at issue. Golden Gate
, 512 F .3d

a t 1127. Our review of the public interest is th u s “constrained,” and “ it is bey o nd our province to evaluate the wisdom” of the Proclamation that the President chose to put in effect. I

d.

That is the result th a t t h e four stay factors r equire. The majorit y , h owever, adds a new, unauthoriz ed stay factor: preservation of the status quo. Maj. Op. 35–36. The majority

reasons that t h e “public interest lies with maintaining the
status quo while the appeal is pending ,” and that th e status quo is a world w ithout the Proclamation. Id. at 3 6

. The majority is wrong on two levels. Circuit precedent is clear
t h a t maintenance o f a “status q uo” is not among the factors that courts c onsider in resolving a request t o s t a y anD O E # 1 V

. T R U M P 84

i n j u n c t i o n. And even if it were, the majority is wrong o n what the status quo is.

I n Golden Gate R estaurant Association v. Ci t y and County of S

an Francisco
, 512 F

. 3d 1112 (9th Cir. 2 008), we granted a motion to stay p ending appeal a district c o u r t ’s injunction of a San F rancisco ordinance that r equired employ e rs to make minimum healthcare e x penditures to or on behalf of their employ ees. T he employ ers arg ued that the City

, in seeking a stay of the injunction a nd reinstitution o f its ordinance pendi n g appeal, “ must meet a hig h er standard,” because “in [ the employ ers’] view, a stay woul d chang e the

s t a t us q uo.” Id. at 1116. W e disag reed. W e h eld that the Supreme Court “did not include p reservation o f the status quo among the factors reg ulating the issuance o f a stay .” Id. (quotations omitted). And we noted that “several of our sister circuits, in reviewing preliminary injunctions enjoining implementation of new leg islation, have g ranted motions for stay s of those injunctions pending a ppe a l without w e ig hing whether a stay would disturb o r p reserve the status q uo.” Id. at 1117.

Our decision in Golde n G ate a lso demonstrates that the majority mis p e r c ei v es the status quo, even if it were a

r e l e v ant consideration. As we ex plained in Golden G ate , “g ranting a s t a y ” o f the injunction “would, in a real sense, preserve rather than chang e the status q uo,” because “ [ i] n the absence of the district court injunction” the ordinance “ would

now b e part o f the status q uo.” I d. a t 1116. The rules
g overning stay s should be no d ifferent for an ordinance that requires employ ers to confer healthcare benefits ( G olden Gate ) than a rule requirin g i m m i g rants to demonstrate they will have qualify ing health insurance (this case). A s inD O E # 1 V

. T R U M P 85

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

The true status quo is t h u s n ot a judicially created one. As I previously ex plained, “while the plaintiffs assume that the status quo is a world without the Presidential Proclamation,

. . . the actual status quo is a leg al environment in which the President possesses ‘ sweeping proclamation
power in § 11 8 2 (f),’ Hawaii
, 138 S. Ct. at 2408 (quotations omitted), and in which Proclamation No. 9945 is therefore authoriz ed.” Doe # 1
, 944 F .3d at 1229 (B ress, J
., dissenting ). A st a y “ simply suspend[ s] judicial alteration of the status q u o ,” Nken

, 556 U.S. at 429, w hich is all the g overnment is requesting here.

The majority is therefore w ron g t o assert that “ [ i] n the
g overnment’s re-imag ining o f the status quo in this contex t, this factor would alway s tip in the g o vernment’s favor, effectively rendering the Court powerl e s s to ex ercise its discretion on this factor in such insta n c e s .” Maj. Op. 36. That is not correct, because the g overnment must meet the traditional Nken factors to e ar n a stay

. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott

, 134 S. Ct. 506, 507 (2013) (Scalia, J
., concurring ) (ex plaining
t h a t no “accepted standard” “require[ s] a court to delay enforcement of a stat e law that the court has determined is likely constitutional on the g r o u n d that the law threatens disruption of t h e s t a tus quo”) (quotations omitted). I t is instead the majority that is “re-imag ining ” the status quo a nd creating a r

ule that, contrary to G olden Gate
, would require deny ing a stay o f any injunction that blocks new p o licies from g oing into effect, be c a u s e a ny thing new can alway s be described as chang ing the status quo.D O E # 1 V

. T R U M P 86

VI

W e arrive at last a t t h e scope of the injunction, which applies nationwide and to p ersons around the world see k ing entry into the United States. My view, of course, is that there should b e no injunction in the first place. B ut the e x t r e m e scope of the d istrict c our t ’s injunction presents new a nd troubling issues of its own.

I n a brief s e c t ion, the court today blesses the district court’s injunction based on a class certification order entered months after the fact and the purported need for uniformity in immig ration policy

. See Maj. O p. 37–40. The majority ’s approach—and the class certification decision it implicit ly endorses—are procedurally and substantively flawed. Nationwide injunctions raise many f u ndamental questions about the proper use of judicial pow e r. Perhaps f or that

r e ason, the Supreme Court has repeatedly stay ed such injunctions pending appeal. See Innovation Law Lab

, 2020 W L 1161432, at *1; New Y ork

, 140 S. Ct. at 599; E. Bay Sanctuary Covenant
, 140 S. Ct. a t 3; Int’l Refugee Assistance Project
, 138 S. Ct. at 542; Hawaii
, 1 3 8 S

. Ct. a t 542. W e should h ave done that o u rselves in this case. Today ’s decision u nfortunately reflects y e t a n other ex ample of the misuse of universal injunctions and the misunderstanding of class certification on which they are so frequently premised.

A

L et’s beg in w i t h t h e sequence of events here, which should be c ause for c oncern. When the district c o u r t issued its injunction in N ovember 2019, n o class had been c ertified and any putative “class m e m b e r s ” were not parties to the

case. See Smith v. Bayer Corp

. , 564 U.S. 299, 313–14D O E # 1 V

. T R U M P 87

(2011). Under what I had thoug ht was the law of our circuit, nationwide relief is only a

ppropriate w here “ necessary to g ive prevailing parties the relief to w hich they are entitled.” Azar
, 91 1 F. 3 d at 581 ( emphasis in o rig inal and quotations omitted); see also New Y

ork

, 1 40 S. Ct. at 600 (Gorsuch, J
., concurring ) ( “Equitable remedies, like r emedies in g eneral,

are meant to redres s t h e injuries sustained by a particular plaintiff i n a p articular lawsuit.”); Zepeda v. INS
, 753 F .2d 719, 728 n.1 ( 9 t h C ir. 1983) (“W ithout a properly c ertified class, a court cannot g

rant relief on a class-wide basis.”).

The district court’s injunction w as thus vastly overbroad when issued. At that time, any injunction could at most have

ex tended t o the named plaintiffs, because no f urther injunction would have b een necessary to g ive these plaintiffs relief. Azar , 911 F

. 3d at 581. As I thus wrote many

months
ag o when w e were considering the g overnment’s request for temporary emerg ency relief pending ap p eal, the district court’s universal injunction could not stand b e cause it “shortcircuits the procedures for class certi f i c a tion by g iving thousands of persons not b efore the cour t t h e r elief that the class certification p rocess is desig ned to evaluate.” Doe # 1
, 944 F .3d at 1228–29 (B ress, J

. , dissenting ).

Now f ast

- f orward many months later. Months a fter briefing and arg ument i n t h i s c o urt o n the g overnment’s motion for stay

pending a

ppeal—and nearly half a y ear after the district c ourt first blocked the Proclamation fr o m taking effect nationwide—the district court issued its class certifica tion decision, certify ing nationwide and worldwide classes. Doe # 1
, 2 0 2 0 W L 1 689727, at *17. The majority today relies o n this later class certification d ecision to leave in place the d istrict court’s earlier u niversal injunction. Maj. Op. 37.D O E # 1 V

. T R U M P 88

This is quite unsett l i n g. The majority ’s reliance on the district court’s rece n t c l ass certification decision is a

c oncession that until a short time ag o, there was no va l i d basis for the district court to enjoi n t h e Proclamation as to any one b ut the named plaintiffs. M a j. Op. 37 (“[ T] he injunction is appropria te at this juncture, whether or n ot it

was when orig inal l y i s s ued.”). Yet when the issue was presented to us four months ag o, we refuse d t o stay any portion of th e nationwide injunction. See Doe # 1
, 944 F .3d
at 1228–29 (B ress, J
., d issenting ). That, in turn, allowed the district c ourt to catch up to our deliberative process and issue the class certification ruling that supposedly justifies a

u n iversal injunction a

nd without which the injunction could not stand.

The problems with this course of events are innumerable. B locking a presidential policy for many months nationwide, without justification, is no small thing . And by ratify ing the

s cope of the d istrict court’s injunction, the majority invites district c ourts to issue overbroad injunctions up front, only to be followed some months later by the class ce r t i f ication decisions that s u p posedly underg ird them. This has it backwards. The scope of a preliminary injunction should be supported at the time it is issued, not months later and while the injunction is on appeal. The inversion of operations that the c o u r t t acitly approves today will only lead to pathdependency in the district c ourts, creating hy draulic p ressure to certify a class in o rder to j u s tify a previously issued nationwide injunction that is now on appeal. That is not h ow this process should work. I ndeed, the g overnment h as not

even y e t h a d the opportunity to appeal the district court’s class certification ruling

, which is now, per the majority ’s

o pinion, the linchpin of the district court’s injunction. Se e F ed. R. Civ. P. 23(f).D O E # 1 V

. T R U M P 89

The majority opinion treats the district court’s d isordered approach as “no harm, no foul” because this is the only case challeng ing Proclamati o n No. 9945. The majority tells us that “[ n] o litig ation challeng ing this Proclamation is pending elsewhere, a lleviating concerns occasionally associated with nationwide injunctions,” namely

, “ t hat such injunctions deprive other courts from offering d iverse perspectives on the leg al issues while similar litig ation is o n go i n g in multiple forums.” Maj. Op. 38.

B u t why is there no other case challeng ing Proclamation No. 9945? The most likely reason is because the district

c ourt in this case blocked the Proclamation before it could

even take effect. W ith an all-en c o m p a ssing injunction in hand, n o putative class member had any reason to bring suit elsewhere. F ar from showi n g t h at the district court’s injunction poses no t h r eat to the p ercolation of leg al issues, the absence of parallel litig ation on Proclamation No. 9945 confirms that n ationwide injunctions can, in fact, sty mie the d e velopment of leg al challeng es. See E. Bay Sanctuary Covenant v. Barr
, 934 F .3d 1026, 1029 (9th Cir. 2 0 19); Azar
, 911 F .3d a t 583. All of this was made possible by the district court’s decision to enjoin t h e Proclamation first and c ertify classes many

months after the fact.

B

The district co u rt’s u n iversal injunction fails not o nly a s

a matter of procedure, but on substantive g rounds as well. Nationwid e i njunctions of federal p olicies are increasing ly

com m o n y et h ig hly controversial. Some members of the Supreme Court have rai s e d important concerns about them. See New Y

o rk

, 140 S. Ct. at 600–01 (Gorsuch, J
., concurring ); Hawaii
, 138 S. Ct. at 2 425–29 (Thomas, J
., concurring )

. ThisD O E # 1 V

. T R U M P 90

case underscores that the problem with n a t i o nwide injunctions often lies not merely in their equitable ex c ess, see New Y ork

, 140 S. Ct. at 600–01 (Gorsuch, J
., concurring ), but

w i th a failure to take seriously the restrictions on c l a s s

c e rtification that Rule 2 3 imposes. The problem with m a n y

n a tionwide injunctions, in other words, is that they are premised on class certification orders that a re themselves infirm. That is the case here.

Class certification, “an ex ce p t ion to the usual rule that litig ation is conducted by and on b ehalf of the individual named parties only ,” is “ proper only if the tr i al court is satisfied, aft e r a rig orous analy sis, that the prerequisites o f Rule 23(a) have been satisfied.” W al-Mart S t ores, Inc. v

. Dukes

, 564 U.S. 338, 349–51 ( 2 0 11) ( quotations omitted). Most challeng es to federal policies like the one before u s seek injunctive relief classes under R u l e 23(b)(2). B u t such classes a re still subject to the strictures of Rule 23(a), including the core requirement that a c ase present “questions of law or fact common to the class.” F ed. R. Civ. P. 23(a)(2). That p rovision r e q uires “not the raising of common ‘questions’—even in d

roves—but rather, the c apac i ty of a class-wide proceeding to g enerate common answers apt to drive the resolution o f t h e litig ation.” W al-Mart

, 564 U.S. at 350 (emphasis in orig inal and quotations omitted).

The majority states without analy sis that the universal injunction h ere “is also based on the certified subclasses, which eliminates some concern that a nationwide injunction is overly burdensome.” Maj. O p. 38–39. B ut even an initial
g lance at the two classes the district c ourt certified shows that the class certification here was any thing but proper. T he first certified class, consisting of persons in the United StatesD O E # 1 V

. T R U M P 91

petitioning for a f

amily member to receive an immig r ant v isa, was defined as follows:

(1) U .S. Petitioner Subclass :

I ndividuals in the United States w ho currently have or will have an approved or pending petition to the United States g overnment to sponsor a noncitiz e n f

amily member for an immig rant visa; a

nd whose sponso r e d family member is subject to the Proclamation a nd unable to demonstrate to a consular o f f icer’s satisfaction that he o r she “will be covered b y approved h e a lth ins u r ance” within 30 day s after e n try or will be able “to pay for reasonably

foreseeable medical costs”; and

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

The central problem with this class definition is that whether the Proclamation will h ave any e f fect on p utative class members depends on two determinations that are hig hly individualiz ed: (1) whethe r t h e c l ass member’s relative would be otherwise q u a l ified f or an immig rant visa but for Proclamation N o. 9 945; and (2) whether the class member’s relative could satisfy the Proclamation. Classwide injunctive relief under Rule 23(b)(2) is appropriate “only when a sing le injunction o r declaratory judgment would provide relief to each member of the class.” W a l-Mart

, 564 U.S. a t 360. A nd commonality under Rule 23(a) “requires the p l a intiff to demonstrate that the class members h a v e suffered t h e s a m e injury .” Id. at 350 (q u o t ations omitted). “That common contention, moreover, must be of such a nature that i t i s capable of classwide resolution—which means thatD O E # 1 V

. T R U M P 92

determination of its truth or falsity will r esolve a n issue that is central to the validity of each o n e of the claims in o ne stroke.” Id.

I n this case, this analy s i s c a n not be done on a classwide basis, turning instead on hig hly individualiz ed determin a t i o ns about whether a g iven person would meet the I NA’s v arious requirements for elig ibility and whether, based on a person’s financial

, family

, medical, and employ ment situation, he would be able to satisfy the Proclamation. I ndeed, the c l a ss definit i o n on its face does not even require that the class members’ r elatives be o therwise qualified for immig rant

v i s a s , a n d it ties class membership to the mere filing of a “petition,” which (as the district court acknowledg ed) is just “[ t] he f i r s t s t e p” in the visa application process. Doe # 1
, 2020 W L 1689727, at *3. Persons in this situation have not

even submitted the required d ocumentation. I n fact, the class is not even limited to persons who have “filed” a petition at all, but ex tends to any one who “will” file one.

I t is no a nswer, as the d istrict c ourt sug g ested, id. a t *12, that plaintiffs in this case are not seeking visa determinations. The premise of this e n ti re lawsuit—and the asserted immediate need f

or the injunction—is that Proclamation No. 9945 is the “but f

o r ” cause preventing plaintiffs’ relatives from obtaining immig rant visas. That is why t h e majority

o p i n i on g o es to g reat leng ths to assert, albeit inaccuratel y , that plaintiffs ’ relatives w ere “otherwise likely qualified under § 1182(a)” for admission into the United States and h ad family members who “ had q ualified for entry u n d e r established immig r ation policy .” Maj. Op. 21, 36. Plaintiffs
cannot make this point in seeking an injunction, but then ig nore it when it comes to class certification.D O E # 1 V

. T R U M P 93

The district c ourt’s second class of “for e i gn nationals” has, if possible, eve n m o r e p r oblems under Rule 23. That class is defined as follows:

(2) V isa Applicant Subclass :

I ndividuals who are fo r e ig n nationals who (i) have a pplied for or will soon apply to the United States g ove r nment for an immig rant visa; (ii) are otherwise elig ible to be g ranted the vis a ; b ut (iii) are subject to the Proclamation and unable to demonstrate to the satisfaction of a consular officer th a t they “w i l l be covered by a pproved health insurance” within 30 d a y s after entry o r will be able “t o pay for reasonably foreseeable medical costs.”

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

The e normity of this c lass should be apparent: it includes
persons in c ountries a ll over th e world. The same individualiz ed determinations descr i b e d above for the U.S. class will be necessary for e ach member of this foreig n nationals class, ex cept the determinations will be even more difficult to accomplis h w h e n class members apply ing for admission are located o utside this country

. I n fact, this class is not even limited to persons who have a pplied for v isas, but

ex tends to those who “ will soon apply ”—a term of uncertain
scope that requires consideration of y e t more indivi d ualiz ed issues. I t is impossible to know today w ho, if a ny one, will actually b enefit from c lass certification since we do n ot know who otherwise qualifies for a visa to the United States or w ho will be unable to satisfy the Proclamation’s requirements.D O E # 1 V

. T R U M P 94

I n short, the idea th at “ class certification” is the incantation needed fo r a n ationwide injunction misses the point that Rule 23 is desig ned to impose limits on broad relief, not to g rease it. The above discussion is not intended
to ex haust the problems w it h the district court’s class

c ertification decision. B ut it shows that in this c as e, t h e injunction’s ex traordinary and improper scope depends on a class certificat i on ruling that does not withstand scrutiny under Rule 23. One suspects that many of the current issues with nationwide injunctions c a n be traced to misapplications of Rule 23. That is, at least, the case here. 4

C

F inally

, the majority o pinion errs in justify ing the district court’s universal injunctio n b a s ed on “the need f or a comprehensive and unified immig ration policy .” Maj. Op. 39 (quotations o mitted). I t is of course true t h a t many cases from the Supreme Court an d t h is court emphasiz e the importance of a uniform immig ration po licy

. E .g. , Arizona v. United States , 567 U.S. 387, 401 (2012); Lemus v. Lynch

, 842 F .3d 641, 649 (9th Cir. 2016 ). B ut the o rig inal c ontex t of these statements was the interpret a t i o n of federal immig ration law. T h a t i s true of the lead cases the majority cites as well. See Maj. O p

. 3 9 ( c iting Arizona and Kahn v

. INS , 36 F .3d 1412, 1414 (9th Cir. 1994)).

4 T h e m aj o rity su g g ests th at “ p ro v isio n al” class certif icatio n is a b asis f o r n atio n w id e relief at t

h e p relim in ary in

j u n c t i o n stag e. Maj

. Op

. 3 7

. Desp ite its so f

te r -so u n din g n am e, p ro v isio n al class certif icatio n is still
g o v ern ed b y th e req u irem en ts o f R u le 2 3

. E.g

. , Meyer v. Po rtfo lio Reco very Asso cs., LLC
, 70 7 F.3 d 1 0 3 6
, 1 0 4 1

– 4 2 (9 th Cir. 20 1 2 ); Va len t in o v. Ca rter-W

a lla ce, In c. , 97 F.3 d 1 2 2 7
, 1 2 3 4

– 3 5 (9 t h Cir. 1 9 9 6 ). In an y ev en t, t

h e d istrict co u rt h ad n o t certif ied a class—p ro v isio n ally or

o th erw i se—w

h en it en tered th e in

j u n ctio n in th is case.D O E # 1 V

. T R U M P 95

I n more recent times, however, o ur circuit has co-opted the pol i c y o f promoting uniform immig ration laws as a justification f

or courts issuing nationwide injunctions o f Ex ecutive B ranch immig ration p olicies. See, e.g. , East Bay Sanctuary Covenant
, 950 F

. 3 d 1 2 4 2
, 1 283–84 (9th Cir. 2020). The f it is not a g ood one. That there can be an int e r e s t in having u niform immig ration p o licies does not mean it is the
courts that can set those u niform policies. That is a decidedly different question.

W h ether Cong ress intended a u niform policy in s t a tutes like th e I N A say s nothing about whether—when courts a re enjoining the immig r a tion policies of democratically elected officials—it is preferable to g o big instead of small. I ndeed, if uniform immig ration p o licy is the v alue to be priz ed above all e lse, nationwide injunctions will alwa y s be necessary , contrary to our cases. S e e E

. Ba y Sanctuary Covenant
, 934 F .3d at 1029 (rejecting the view tha t a n ationwide injunction is a

ppropriate “any time an e n j o i n ed action has
p o t ential nationwide effects,” which “would turn broad injunctions into the rule rather than the ex ception”). Perhaps unsurprising ly

, w hen we recently invoked the int e r e s t in uniform immig ration laws in allowing a n ationwide injunction, t h e Supreme Court stepped in and stay e d the injunction. Inno v ation Law Lab v. W olf

, 951 F .3d 1073, 1094–95 (9th Cir. 2020 )

, stay granted

, 2020 W L 1161432, at *1.

I n this c ase, t h e majority o pinion tells us that “a more limited injunction of the Proclamation wou l d needlessly complicate” immig ration enforcement, whereas a n ationwide injunction “promotes uniformity in administering federal i m mig r ation law.” Maj. Op. 39–40 (citing East B a y Sanctuary Covenant
, 950 F

. 3d a t 1 2 8 4 )

. B u t it is theD O E # 1 V

. T R U M P 96

Ex ecuti v e Br anch, not the courts, that are charg e d with enforcing th e i m m i g ration laws. And in this court, the
g overnment maintains it is better policy for the injunction to be narrowed, p referring a more limited enforcement of the Proclamation to none at a l l

. I f the scope of an injunction should turn on which approach is superior for “administering federal immig ration law,” Maj. Op. 39–40, why should our view on t h a t question prevail? I t is u nfortunate that courts have injected themselves into debates such as this, w hich a re far outside our role and competence.

I t is thus somewhat f

itting that the majorit y opinion invokes as authority f

o r the district court’s n ationwide injunction and the “ uniformity of immig ration law” rationale

our circuit’s decision in Hawaii v. Trump
, 878 F

. 3 d 662 (9th Cir. 2017). Maj. Op. 3 9 (c i t ing the decision f or the proposition that “[ b ] ecause this c ase implicates immig r ation policy

, a n ationwide injunction was necessary t o g ive Plaintiffs a full ex pression of their rig h ts”). As the majority
must quickly acknowledg e, the cited decision was then “ rev’d

on other grounds ” by the Supreme Court in Trump v

. Hawaii
, Maj. Op. 39—a decision that vacated o ur court’s n ationwide injunction and the very case that confirms Proclamation No. 9945 is a valid ex ercise of the President’s authority . I n fact, the referenced de ci s i o n from this court in the Trump v

. Hawaii litig ation, and this court’s discussion of uniformity in immig ration law, w as handed down after the Supreme Court had already stay ed the nationwide injunction in full pending appeal. Hawaii
, 138 S. Ct. at 542; H awaii v. Trump
, 878 F .3d 675, 701 (9th Cir. 2017).

The u niformity we should have p ursued is the uniformity of decision with Trump v. Hawaii

. That would have r equiredD O E # 1 V

. T R U M P 97

stay ing in full the district court’s i m proper and overbroad injunction. B ecause we do not do so, I respectfully

dissent.