FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C U IT JOHN DOE #1; e t a l.,

Pla intiffs-Appe lle e s,

v. DONALD J. TR

UM P, in his offic ia l c a pa c ity a s Pre side nt of the Unite d Sta te s; e t a l.,
De fe nda

nts-Appe lla

nts. No. 19-36020

D.C

. No. 3:19-c v-01743-SI Distric t of Ore gon, Portla nd
OR DER

B e fore : THOM AS, C hie f Judge , B ER Z ON a nd B R ESS, C irc uit Judge s. The gove rnm e n t re que sts a n e m e rge nc y

te m pora ry sta y of the distric t c ourt’ s orde r pre lim ina

rily e njoining Pre side ntia l Proc la m a tion No. 9945, S uspe nsion of Entry of Immigrants W

h o W ill Financ ially

Burde n the Unite d State

s He alth C

are Sy ste m , pe nding c onside ra tion of the m otion for a sta y pe nding a

ppe a l. The
gove rnm e nt a lso se e ks a sta y of the pre lim i na

ry injunc tion pe nding a

ppe a l. The pla i ntiffs oppose both m o tions.
A te m pora ry sta y in this c onte xt (som e tim e s re fe rre d to a s a n a d m inistra tive
sta y ) is only inte nde d to pre se rve the sta tus quo until the

substa ntive m otion for a
sta y pe nding a

ppe a l c a n be c onside re d on the m e rits, a nd doe s not c onstitute

in a ny

wa y a de c ision a s to the m e rits of the m otion for sta y pe nding a

p p e a l. 

# FIL ED

DEC 20 2019
M OLLY C. DW Y ER, CLERK U. S. CO URT O F APPEALSHe re , the sta tus quo would be

disrupte d by gra nting the te m

pora ry sta y

re que s t. The re fore , we de ny the re que st for a te m

p ora ry sta y . The Proc la m a tion ha s not y e t gone into e ffe c t. The c ha nge s it would m a

k e to Am e ric a n im

m i gra tion polic y a re m a jor a nd unpre c e de nte d; the ha

rm s the gove rnm e nt a lle g e s it will suffe r pe nding re vie w of the m otion for sta y pe nding a

ppe a l a re long-te rm

ra the r tha n im m e dia te . Our ruling is ba se d sole ly on the a bse n c e of a

suffic ie nt e xige nc y to justify c ha

n ging the sta

t us quo, pa

rtic u la rly during the fe w we e ks be fore

sc he dule d ora l a

rgum e n t on the m e rits of the e m e rge nc y m o tion; we do not

c onside r the m e rits of the dispute in a ny re spe c t. B y this orde r we a re e xpe d iting brie fing a nd ora l a rgum e nt on the e m e rge nc y m o tion a nd a ntic ipa te a n e xpe ditious issua nc e of a de c ision following a

rgum e nt. Any gove rnm e n t re ply to pla intiffs’ opposition to the m otion for sta

y
pe nding a ppe a l is due De c e m

be r 23, 2019. The pa rtie s a re dire c te d to a

ppe a r for ora l a

rgum e n t on the m otion for sta y
pe nding a ppe a l on Thursda

y , Ja nua ry 9, 2020, a

t 10:00 a m in Sa n Fra n c isc o, C a lifornia . Ea c h side will be a llotte d 20 m inute s of a rgum e nt tim e . The pa

rtie s a re

e nc oura g e d to a

p p e a r in pe rson if possible . If a ny pa rty wishe s to a

ppe a r by vide o, tha t pa rty m ust notify Kwa m e C ope la

nd, 415.355.7888, no la

te r tha n Frida y , Ja nua ry 3, 2020, a

nd m ust c oordina

te with M r. C ope l a nd in m a king suita ble

a rra nge m e nts for a

n a ppe a ra nc e by

vide o.

2The ope n i ng brie f a nd e xc e rpts of re c ord a re due Ja nua ry 2, 2020; the

a nswe ring brie f is due Ja

nua ry 30, 2020 or 28 da

y s a fte r se rvic e of the ope ning brie f, whic h e ve r is e a rlie r; a nd the optiona l re ply

brie f is due within 21 da

y s a fte r

se rvic e of the a nswe ring brie f. This c a se will be a ssigne d to the ne xt a va ila ble ora l

a rgum e nt pa

ne l for a de c ision on the

m e rits of the a

ppe a l.

3John Doe #1, et al v. Donald Trump, et al , No. 19

- 36020 BRESS , Circuit Judge, dissenting : Before it could take effect, a district court in Oregon enjoined a Presidential Proclamation that placed a suspension and certain limitations on the entry of immigrants who m the President has determined will burden the American healthcare system. The district court refused to stay its nationwide injunction, and the government has now sought a stay of the district court’s order pending appeal, as well as a temporary stay pending this Court’s ruling on the underlying stay motion. Only the latter request is before us now. I would grant t he temporary stay and so respectfully dissent from its denial

. Whatever one’s views on the Presidential Proclamation as a matter of policy , the district court’s decision is clearly wrong as a matter of law

. In the supposed name of the separation of power s, the district court str uck down part of a longstanding congressional statute, invalidate d a presidential proclamation, and purport ed to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine

— among the most brittle limb s in American constitutional law

— and a reading of 8 U.S.C. § 1182(f) that the Supreme Court expressly rejected in Trump v. Hawaii , 138 S. Ct. 2392 (2018). The district court’s extraordinary injunction ignores governing precedent, inv ents unjustified restrictions on the political branches, and inserts the courts into the President’s well



# FILED

DEC 20 2019 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 established constitutional and statutory prerogative to place limits on persons entering this country

. Th e Proclamation concerns matters of great con sequence and is understandably important to many people, but the law prevent ed the district court from doing what it did here. Today’s order is not a ruling on the government’s underlying motion for a stay pending appeal, which I hope will ultimately be grant ed

. But given the clear error below and irreparable resulting harms, a temporary stay is warranted. See 9 th Cir. R. 27

- 3. W e have granted such stays before , including in another case today

. E.g. , Al Otro Lado, Inc. v. Wolf , No. 19

- 56417 (9th Cir. Dec. 18, 2019); East Bay Sanctuary Covenant v. Barr , No. 19

- 16487 (9th Cir. Sept. 10, 2019), ECF No. 45 ; Innovation Law Lab v. Nielsen , No. 19

- 15716 (9th Cir. Apr. 12, 2019), ECF No. 6

. We should have issued a temporary stay here as well . I therefore respectfully dissent.
I This case arises from Presidential Proclamation No. 9945, entitled Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order To Protect the Availability of Healthcare Benefits for Americans

. Pres. Proc. No. 9945, 84 Fed. Reg. 53 , 991 (2019)

. Citing 8 U.S.C. § 1182(f) and his authority under the Constitution , the President suspended and limited the entry of certain immigrants who cannot show that , within 30 days of arriving in the United3 States , they “will be covered by approved health insurance” or “possess[] the financial resources to pay for reasonably foreseeable medical costs

. ” Id. at 53 , 992. The Proclamation r eferenc es data “ show [ ing] that lawful immigrants are about three times more likely than United States citizens to lack health insurance

. ” Id. at 53 , 991. And it finds t hat health care providers and taxpayers bear a “substantial” burden on behalf of those “who lack health insur ance o r the ability to
pay , ” so that “[c]ontinuing to allow entry in to the United States of certain immigrants who lack health insurance or the demonstrated ability to pay for their healthcare would be detrimental” to the national interest. Id. T he President also noted other financial and public health burdens that the uninsured can impose, including reliance

on publicly funded benefit programs and overreliance on emergency room care , which in turn results in “delays for those who truly need emerg ency services

. ” Id. To remedy th ese problem s , t he Proclamation requires visa applicants to show that they will have healthcare coverage that would satisfy the Proclamation or show they are otherwise able to afford reasonably foreseeable medical expenses

. Id. at 53 , 992

. Under the Proclamation, an immigrant must “establish that he or she meets its requirements, to the satisfaction of a consular officer, before the adjudication and issuance of an immigrant visa.” Id. at 53 , 993. It also provides that the “[t]he Secretary o f State may establish standards and procedures governing such determinations.” Id. By its terms, the Proclamation does not apply to immigrants4 who have already entered the United States pursuant to a visa or those “entering the United States through mean s other than immigrant visas

. ” I d. at 53 , 9 92

– 93. The Proclamation thus does not apply to “lawful permanent residents

. ” Id. at 53,993. It also makes clear that “nothing in this proclamation shall be construed to affect any individual’s eligibility for a sylum, refugee status, withholding of removal, or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Id.
T he Proclamatio n requires the preparation of an inter

- agency report “within 180 days of [its] effective date ”

— and each year thereafter

— on “the continued necessity of and any adjustments that may be warranted to the suspension and limitation on entry” imposed. Id. In the event “ circumstances no longer warrant the continued effectiveness of the suspension and limitation on entry ,” the President is to be “immediately” advised. Id. The Proclamation was set to take effect on November 3, 2019, id. at 53 , 994, but two days before, p laintiffs

— a Multnomah County, Oregon advocacy organization an d several United States citizens with family members who will allegedly be seeking immigrant visas

— requested and received a temporary restraining order blocking enforcement of the Proclamation nationwide. On November 26, 2019, the district court granted p laintiffs’ request for a nationwide preliminary injunction. Doe #1 v. Trump , 2019 WL 6324560 (D. Or. Nov. 26, 2019).5 The district court held that the statutory basis for the Proclamation

— 8 U.S.C. § 1182(f)

— was an unconstitutional delegation of legislati ve power because it “provides no guidance whatsoever for the exercise of discretion by the President

. ”
Doe # 1 , 2019 WL 6 324560 at *10

. The district court also held that the Proclamation was “unconstitutional under separation of powers,” because it “contravenes” the public charge provision s of the Immigration and Nationality Act. Id. at * 12, 15

– 16

. T he district court declined to stay its order pending appeal

. The g overnment filed

an eme rgency motion with this Court, seeking an immediate temporary stay of the district court’s injunction and a stay pending appeal by December 27, 2019

. II This Court has the power to issue temporary stays pending appeal in cases of immediate irreparable harm. See 9th Cir. R. 27

- 3. These are sometimes called administrative stays or emergency stays

. The name is less important than the standards that govern the request. T he backdrop for the government’s motion for a
tem porary stay is necessarily the ultimate relief it is request ing , which is a complete stay pending appeal. That request is governed by the following factors : (1) whether the stay applicant has made a strong showing that he is likely to succeed on the meri ts; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injur[e] the other parties interested in the proceeding; and (4) where the public interest lies. City and Cty. of S.F. v. USCIS , 20 19 WL 6726131, at *10 (9th Cir. Dec. 5, 2019)6 (quot ing Nke n v. Holder , 556 U.S. 418, 43 3

– 34 ( 2009)). As we have explained, “‘[l]ikelihood of success on the merits is the most important factor.’” East Bay Sanctuary Covenant v. Barr , 934 F.3d 1026, 1028 n.3 (9th Cir. 2019) (quoting California v. Azar , 911 F.3d 558, 575 (9th Cir. 2018)). The Court appears to suggest , without citation, that when it comes to a request for a temporary stay, the merits are not to be considered . But the i nstant request for a temporary stay is part of the request for a stay pending appeal , and the Court cites no authority for why the usual stay factors

— including likelihood of success on the merits

— would not apply. In this case, moreover, the government filed its emergency motion and motion for stay pending appeal on December 4, 2019, and the plaintiffs have filed oppositions to both motions. We have had more than enough time to consider the merits, and u nder the ci rcumstances, not considering the likelihood of success has the undesired effect of allowing a demonstrably incorrect injunction to remain in place without justification. Because the only question currently before us is whether to grant a temporary stay, m y analysis here is necessarily abbreviated. B ut it does not take much to show that the district court’s order is clearly wrong and produces irreparable harm every day it persists

. A Section 1182(f) of the Immigration and Nationality Act (INA) provides :7 W henever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspen d the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. 8 U.S.C. § 1182(f). As the Supreme Court explained in Trump v. Hawaii , t his provision “exudes deference to the President in every clause” and “grants the President sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” 138 S. Ct. at 240 8, 2413. In combination with the President’s own i nherent constitutional authority in this space, Proclamation No. 9945 was plainly authorized under § 1182(f). The district court nevertheless concluded that § 1182(f) was unconstitutional under the nondelegation doctrine because “[t]here is no ‘intelligib le principle’ provided as to what it means to be ‘detrimental,’ what the ‘interests’ of the United States are, what degree of finding is required, or what degree of detriment is required.” Doe #1 , 2019 WL 6324560, at * 10

. That holding is unprecedented

. T he non delegation doctrine is one of the most infrequently applied doctrines in constitutional law. Just last Term, the Supreme Court reiterated that “[w]e have almost never felt qualified to second

- guess Congress regarding the permissible degree of po licy judgment that can be left to those executing or applying the law.” Gundy v. United States , 139 S. Ct. 2116, 2129 (2019) (quotations omitted) . That8 reticence explains why “only twice in this country’s history (and that in a single year) h a[s] [the Su preme Court] found a delegation excessive .” Id. I n the context of immigration

— in which the President ’s authority is based on both statutory and constitutional powers

— it cannot be that this case now presents just the third instance
in our Nation’s history in which the nondelegation doctrine should apply. Section 1182(f), which was enacted in 1952, has for decades been the noted

source of statutory authority for presidential proclamations involving immigration
matters. See Hawaii , 138 S. Ct. at 24 09

– 10, 2412. The sudden discovery that this longstanding statute is an unconstitutional delegation of legislative power would therefore be surprising , to say the least

. But it is of course no such thing. Less than two years ago, and in the course of upholding a p residential p roclamation issued pursuant to § 1182(f), the Supreme Court in Trump v. Hawaii held that § 1182(f)

w a s a “comprehensive delegation” of authority to the President, explaining that “the language of § 1182(f) is clear.” Id. at 2408, 2410. That is the opposite of an unconstitutional delegation lacking any intelligible principle, as the district court erroneously held. The district court’s analysis also proceeded from the mistaken assumption that tha t the President’s authority in this area is entirely delegated. It is not. I n U nited
States ex rel. Knauff v. Shaughnessy , 338 U.S. 537 (1950), the Supreme Court rejected a nondelegation challenge to a precursor to § 1182(f)

. In so doing, it held9 that “ [t]here is no question of inappropriate delegation of legislative power involved here,” because “ [t]he exclusion of aliens is a fundamental act of sovereignty” and “[t]he right to do so stems not alone from legislative power but is inherent in the executiv e power to control the foreign affairs of the nation

. ” I d. at 542 ; see also
Hawaii , 138 S. Ct. at 2418 . All of this explains why “the strict limitation upon congressional delegations of power to the President over internal affairs does not apply with res pect to delegations of power in external affairs.” Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 636 n.2 (1952) (Jackson, J., concurring). The district court’s novel decision ignores this well

- settled law and fails to accord the political branches the deference they are understandably due in this area. The district court’s separation of powers analysis fares no better. The district
court also enjoined the Proclamation as “unconstitutional under separatio n of powers,” on the theory that the Proclamation contravenes the public charge provision of the INA , Doe #1 , 2019 WL 6324560, at * 12

– 1 6 , which renders inadmissible a n immigrant who “is likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)( A). In making that public charge determination, the INA lists a series of non

- exhaustive factors to be considered “at a minimum,” including “assets, resources, and financial status.” Id. § 1182(a)(4)(B). In the district court’s view, the Proclamation is inconsistent with th e “totality of the circumstances” approach in § 1182(a)(4)(B) because “it makes ability to pay for anticipated care . . . [the] single,10 dispositive factor.” Doe # 1 , 2019 WL 6324560, at *14. Once again, the district court seriously erred in failing to follow Supreme Court precedent. In Trump v. Hawaii , the Supreme Court rejected the very sort of argument that the district court accepted here. There, the plaintiffs claimed that a different p r esidential p roclamation supplanted the INA because Congress had already legislated in the area that the p roclamation covered. 138 S. Ct. at 2410

– 12. The Supreme Court disagreed because § 1182(f) “vests authority in the President to impose additional limi tations on entry beyond the grounds for exclusion set forth in the INA.” Id. at 2412 (emphasis added)

. Indeed, the Supreme Court viewed it as “unsurprising ” that “ § 1182(f) vests the President with ‘ample power’ to impose entry restrictions in addition t o those elsewhere enumerated in the INA.” Id. at 2408 (quoting Sale v. Haitian Centers Council, Inc. , 509 U.S. 155, 187 (1993) ) (emphasis added)

. That is all the President did here , and there is thus no basis for the district court’s determination that the Proclamation is somehow “executive lawmaking in a manner that Congress expressly rejected in the public charge provision.” Doe # 1 , 2019 WL 6324560, at * 14

. As we recently explained in granting a st ay pending appeal of a different challenge to Executive action , the “public charge ” provision recites “factors [that] are to be considered ‘at a minimum, ’ ” but “[o]ther factors may be considered as well , giving officials considerable discretion in their de cisions.”11 City and Cty. of S.F. , 2019 WL 6726131, at *13 ; see also id. (“Congress set out five factors to be taken into account by immigration officials, but expressly did not limit the discretion of officials to those factors.”). The district court nonet heless found it relevant that , in its view, the Proclamation “is unlikely to make any meaningful difference to address the problem ” of our country’s overburdened healthcare system, and that the Proclamation’s “ implementation will not result in a reduction to the problem that would then, in turn, result in the restriction no longer being necessary.” Doe # 1 , 2019 WL 6324560, at * 15

. R easoning such as this improperly supplanted the district court’s view for that of the President , to whom the Constitution and Congress through § 1182(f) have accorded great discretion. See Hawaii , 138 S. Ct. at 2409.
B The g overnment will also suffer immediate irreparable harm in the absence of

a temporary stay. The district court’s order blocks the President from carrying out responsibilities that Congress entrusted to him under § 1182(f), in an area in which the President has his own powers under the Constitution. In the President’s judgment, immigrants “who ha ve not demonstrated any ability to pay for their” medical care impose substantial burdens on the American healthcare system, requiring the immediate suspension and limitations that the Proclamation sets forth. Pres. Proc. No. 9945, 84 Fed. Reg. at 53 , 99 1. T he Proclamation does not apply once12 an immigrant has been admitted to the United States, id. at 53 , 992

– 93; Emergency Mot. at 19, so the g overnment can never recover health care costs incurred by individuals admitted during the period that the district c ourt’s injunction remains in place

. “[S]uch harm is irreparable here because” the government “will not be able to recover monetary damages.” Azar , 911 F.3d at 581. N or can the government avoid other associated harms that the Proclamation identifies, such as disruption in the provision of emergency services

. In addition, p laintiffs’ claim that the Proclamation will affect substantial numbers of immigrants “seems to prove [the g overnment’s] point” on immediate irrepara ble harm. City and Cty. of S.F. , 2019 WL 6726131, at *24

. In seeking a preliminary injunction, plaintiffs represented that the Proclamation would “affect[] an estimated two

- thirds of all legal immigrants, or 375,000 people” and that its impact would be “ immediate.” Mot. For Prelim. Inj. at 2, 40 , Doe #1 v. Trump , Case No. 3:19

- cv - 01743

- SB (D. Or.), ECF No. 46

. As we have recognized, assertions like this are “double

- edge d ,” because i f the Proclamation would prevent the admission of many immigrants unable to pay for their own medical costs, “the harm cited by [the g overnment] is not only irreparable, but significant.” City and Cty. of
S.F. , 2019 WL 6726131, at *24

. That immediate harm is only magnified by the extraordinary scope of the district court’s injunction , which short

- circuits the procedures for class certification13 by giving thousands of persons not before the court the relief that the class certification process is designed to evaluate

. We have cautioned against the use of nati onwide injunctions like the one that the district court issued here

. See East Bay Sanctuary Covenant , 934 F.3d at 1030 ( citing Azar , 911 F.3d at 583 )

. We have also made clear that nationwide injunctions must be “necessary to remedy a plaintiff’s harm.” Id. at 1029. The district court did not undertake this analysis, holding that

mere “alleged classwide harm” could justify a universal injunction. Doe #1, 2019 WL 6324560, at * 21

. That too was error and would justify nationwide injunctions in every putat ive class action , contrary to law. See East Bay Sanctuary Covenant , 934 F.3d at 1029 ; Azar , 911 F.3d at 582. It is no answer that an administrative stay would upset the status quo. In the case of stay requests, “ [m] aintaining the status quo is not a tali sman.” Golden Gate Rest. Ass’n v. City and Cty. of S.F. , 512 F.3d 1112, 1116 (9th Cir. 2008). And as we have explained , “the Supreme Court

. . . did not include preservation of the status
quo among the factors regulating the issuance of a stay.” Id. (quotations omitted). Moreover, w h ile t he plaintiffs assume that the status quo is a world without the Presidential Proclamation, for the reasons explained above, the actual status quo is a legal environment in which the P resident possesses “ sweeping pro clamation power in § 1182(f) , ” Hawaii , 138 S. Ct. at 2408 (quot ations omitted ), and in which Proclamation No. 9945 is therefore authorized. As a result, “granting a stay in this14 case would, in a real sense, preserve rather than change the status quo ” beca use “[i] n the absence of the district court injunction,” the Proclamation that was scheduled to take effect on November 3, 2019 “would now be part of the status quo.” Golden
Gate Rest. Ass’n , 512 F.3d at 1116

. Plaintiffs’ argument therefore has it backwa rds: “[a] stay simply suspend[s] judicial alteration of the status quo , ” while the injunctive relief granted below constitutes “judicial intervention” upending it. Nken , 556 U.S.
at 429 (quot ations omitted )

. While the Court notes that “[t]he Proclamation has not yet gone into effect,” that is only because the district court enjoined it. It should not be that a district court order enjoining a lawful presidential proclamation is immune from a stay simply becau se it blocked the P roclamation before it could take effect. And I do not think that a district court order that unduly constrains the powers of the p eople’s elected representatives without basis in law should govern for any longer than it already has.
I respectfully dissent.