John Doe 1 v. Donald Trump ( 2020 )

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 31 2020
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
JOHN DOE #1, et al., No. 19-36020
Plaintiffs-Appellees, D.C. No. 3:19-cv-1743-SI
v.
OPINION
DONALD TRUMP, et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Argued and Submitted September 3, 2020
Seattle, Washington
Before: A. Wallace Tashima, Jay S. Bybee, and Daniel P. Collins, Circuit Judges.
Opinion by Judge Collins;
Dissent by Judge Tashima
COLLINS, Circuit Judge:
On October 4, 2019, the President of the United States issued Proclamation
No. 9945, entitled “Suspension of Entry of Immigrants Who Will Financially
Burden the United States Healthcare System, in Order [t]o Protect the Availability
of Healthcare Benefits for Americans.” The Proclamation restricts entry of
immigrant visa applicants who cannot demonstrate that they either (1) will acquire
qualifying healthcare coverage within 30 days of entry or (2) have the ability to
pay for reasonably foreseeable healthcare expenses. See Proclamation No. 9945,
84 Fed. Reg. 53991, 53992 (Oct. 9, 2019). In November 2019, the district court
granted a universal preliminary injunction blocking the implementation of this
Proclamation and denied the Government’s request for a stay pending appeal. See
Doe #1 v. Trump, 418 F. Supp. 3d 573, 605 (D. Or. 2019). The Government filed
motions for an administrative stay and for a stay pending appeal, which this court
denied by a divided vote. See Doe #1 v. Trump, 944 F.3d 1222, 1223 (9th Cir.
2019); Doe #1 v. Trump, 957 F.3d 1050, 1070 (9th Cir. 2020). We conclude that
the Proclamation was within the President’s statutory authority and therefore
reverse the district court’s order enjoining the Proclamation’s implementation.
I
A
Under the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et
seq., an alien seeking lawful permanent residence in the United States generally
must apply for and be issued an immigrant visa. Id. § 1181(a). The process for
acquiring this type of visa is lengthy. An alien ordinarily either must first obtain a
sponsorship from a prospective employer or from a family member who is a
United States citizen or lawful permanent resident or must qualify for a diversity-
based visa. See id. §§ 1151, 1153. For family-based and employment-based visas,
the alien’s sponsor typically must submit, on the alien’s behalf, a petition to U.S.
2
Citizenship and Immigration Services establishing the sponsor-applicant
relationship. Id. § 1154(a)(1)(A)–(B), (F); 8 C.F.R. §§ 204.1(a)(1), 204.5(a). If
that petition is approved, the alien then may “apply for a visa by submitting the
required documents and appearing at a United States Embassy or consulate for an
interview with a consular officer.” Kerry v. Din, 576 U.S. 86, 89 (2015) (plurality)
(citing 8 U.S.C. §§ 1201(a)(1), 1202). A consular officer then determines whether
to issue or refuse the visa application. 8 U.S.C. § 1201(a)(1)(A), (g); id. § 1204;
22 C.F.R. §§ 42.71(a), 42.81(a).
Before the consular officer may issue a visa, he or she must first “ensure the
alien is not inadmissible under any provision of the INA.” Din, 576 U.S. at 89
(plurality) (citing 8 U.S.C. § 1361). There are a number of reasons why an alien
may be inadmissible under the INA. See 8 U.S.C. § 1182(a). An alien may be
deemed inadmissible, for example, based on health-related grounds, the alien’s
prior criminal convictions, security-related grounds (such as ties to terrorist
activities), or the likelihood that the alien will “become a public charge.” See id.In addition, under § 212(f) of the INA, the President may, by proclamation, and
“for such period as he shall deem necessary, suspend the entry of all aliens or any
class of aliens” or “impose on the entry of aliens any restrictions he may deem to
be appropriate” whenever he “finds that the entry of [such] aliens or . . . class of
aliens . . . would be detrimental to the interests of the United States.” Id. § 1182(f);
3
see also INA § 215(a)(1), 8 U.S.C. § 1185(a)(1) (“Unless otherwise ordered by the
President, it shall be unlawful . . . for any alien to depart from or enter or attempt to
depart from or enter the United States except under such reasonable rules,
regulations, and orders, and subject to such limitations and exceptions as the
President may prescribe.”).
Invoking his authority under “the Constitution and . . . sections 212(f) and
215(a)” of the INA, the President issued Proclamation No. 9945 on October 4,
2019. See 84 Fed. Reg. at 53991. In the Proclamation, the President “find[s] that
the unrestricted immigrant entry” of a defined class of aliens—generally consisting
of those who lack “approved health insurance” or the “financial resources to pay
for reasonably foreseeable medical costs”—would, with certain exceptions, “be
detrimental to the interests of the United States.” Id. at 53991–92. As explained in
the Proclamation, this finding rests on the President’s determination that such
immigrants contribute to two significant problems facing the U.S. healthcare
system. Id. at 53991.
First, the Proclamation states that uninsured persons (including both citizens
and aliens) impose “substantial costs” on U.S. healthcare providers and taxpayers.
Id. Specifically, “[h]ospitals and other providers often administer care to the
uninsured without any hope of receiving reimbursement from them,” and
“uncompensated care costs . . . have exceeded $35 billion in each of the last 10
4
years” or about $7 million annually per U.S. hospital. Id. These costs, the
Proclamation states, “are passed on to the American people in the form of higher
taxes, higher premiums, and higher fees for medical services.” Id. Moreover,
“[b]eyond uncompensated care costs, the uninsured strain Federal and State
government budgets through their reliance on publicly funded programs, which
ultimately are financed by taxpayers.” Id.
Second, the Proclamation also states that “uninsured individuals often use
emergency rooms to seek remedies for a variety of non-emergency conditions,
causing overcrowding and delays for those who truly need emergency services.”
Id. This “non-emergency usage” of emergency rooms further “places a large
burden on taxpayers, who reimburse hospitals for a portion of their uncompensated
emergency care costs.” Id.
The Proclamation further finds that the U.S. Government is making these
problems worse “by admitting thousands of aliens who have not demonstrated any
ability to pay for their healthcare costs.” Id. In reaching this conclusion, the
Proclamation references data showing that “lawful immigrants are about three
times more likely than United States citizens to lack health insurance.” Id.
Accordingly, the President determined in the Proclamation that “[c]ontinuing to
allow entry into the United States of certain immigrants who lack health insurance
or the demonstrated ability to pay for their healthcare would be detrimental” to the
5
national interest. Id.
Based on this finding, the Proclamation generally restricts the entry of
immigrant visa applicants who cannot demonstrate, “to the satisfaction of a
consular officer,” that they either (1) “will be covered by approved health
insurance” within thirty days of entry, or (2) “possess[] the financial resources to
pay for reasonably foreseeable medical costs.” 84 Fed. Reg. at 53992–93. The
Proclamation authorizes the Secretary of State to “establish standards and
procedures governing such determinations.” Id. at 53993. This review process “is
separate and independent” from that “required by other statutes, regulations, or
proclamations.” Id.
The Proclamation lists numerous healthcare plans that would qualify as
“approved health insurance,” including “an employer-sponsored plan”; “an
unsubsidized health plan offered in the individual market within a State”; “a
catastrophic plan”; “a family member’s plan”; “a medical plan under the Medicare
program”; or “any other health plan that provides adequate coverage for medical
care as determined by the Secretary of Health and Human Services or his
designee.”1 84 Fed. Reg. at 53992. Except to the extent that a visa applicant
1
The Proclamation’s definition of “approved health insurance” also specifically
includes “a short-term limited duration health policy effective for a minimum of
364 days—or until the beginning of planned, extended travel outside the United
States”; “a medical plan under chapter 55 of title 10, United States Code, including
6
alternatively shows that he or she has sufficient resources to cover “reasonably
foreseeable medical costs,” the applicant need only show that he or she “will be
covered” by such approved health insurance “within 30 days of the alien’s entry
into the United States”—he or she need not necessarily obtain that coverage before
entry. Id.
The Proclamation specifically exempts certain aliens from its scope. It does
not apply, for example, to “any alien holding a valid immigrant visa issued before
the effective date” of the Proclamation or those “entering the United States through
means other than immigrant visas.” 84 Fed. Reg. at 53992–93. It also exempts
“any alien who is the child of a United States citizen or who is seeking to enter the
United States pursuant to” specified categories of visas for children. Id. at 53992.
Nor does it apply to “any alien under the age of 18, except for any alien
accompanying a parent who is also immigrating to the United States and subject to
this proclamation.” Id. It also does not cover “any alien whose entry would be in
the national interest, as determined by the Secretary of State or his designee on a
case-by-case basis.” Id. at 53993. In addition, the Proclamation specifically does
coverage under the TRICARE program”; and “a visitor health insurance plan that
provides adequate coverage for medical care for a minimum of 364 days—or until
the beginning of planned, extended travel outside the United States.” 84 Fed. Reg.
at 53992. The definition also makes clear that the phrase “an employer-sponsored
plan” includes “a retiree plan, association health plan, and coverage provided by
the Consolidated Omnibus Budget Reconciliation Act of 1985.” Id.
7
not “affect any individual’s eligibility for asylum, refugee status, withholding of
removal, or protection under the Convention Against Torture.” Id.
The Proclamation also establishes certain periodic review procedures. It
instructs the Secretary of State to submit to the President, “in consultation with”
certain agency heads, a report addressing “the continued necessity of and any
adjustments that may be warranted to the [Proclamation’s] suspension and
limitation on entry.” 84 Fed. Reg. at 53993. This must be done “within 180 days”
of the Proclamation’s effective date, and again annually thereafter. Id. The
Proclamation states that “[i]f the Secretary of State, in consultation with the heads
of other appropriate executive departments and agencies, determines that
circumstances no longer warrant the continued effectiveness of the suspension or
limitation on entry,” the President is to be “immediately” advised. Id. The
Proclamation stated that its provisions would take effect on November 3, 2019. Id.
at 53994.
B
On October 30, 2019, the Latino Network and seven individuals filed this
lawsuit against the United States and various federal officials and departments
challenging the validity of the Proclamation.2 The Latino Network—which
2
Specifically, the complaint also named as Defendants the President; the
Departments of State, Homeland Security, and Health and Human Services; and
8
sometimes refers to itself as “LatNet”—is an organization in Portland, Oregon,
whose asserted “mission is to educate and empower Multnomah County Latinos to
achieve physical and mental health, safe housing, sustainable financial stability,
and social support.” LatNet alleges that the Proclamation has forced it “to divert
resources from its core activities to address the Proclamation’s fallout within the
community the organization serves.” The seven individual Plaintiffs are all U.S.
citizens who are sponsoring either their spouses (in five cases) or their parents (in
the remaining two) for immigrant visas. The seven individual Plaintiffs allege that
their respective sponsored relatives will be unable to obtain “approved” health care
plans in accordance with the Proclamation and will therefore be inadmissible under
its terms. The individual Plaintiffs (but not LatNet) seek to represent two proposed
subclasses of persons: (1) a “U.S. Petitioner Subclass” consisting of certain U.S.
persons who are sponsoring alien relatives who are unable to satisfy the
Proclamation’s requirements; and (2) a “Visa Applicant Subclass” that generally
consists of aliens applying for immigrant visas who cannot meet the
Proclamation’s requirements. Because all seven individual Plaintiffs are U.S.
citizens, none is a member of the proposed Visa Applicant Subclass.
the Secretaries who head those Departments. The day after the preliminary
injunction was granted, Plaintiffs filed a First Amended Complaint that added an
eighth plaintiff. Nothing about our disposition of this appeal turns on any
difference between the two complaints, and we therefore focus on the original
complaint that was before the district court at the time that it ruled.
9
The complaint alleges four causes of action. First, the individual Plaintiffs
(on behalf of themselves and the subclasses) and LatNet contend that Defendants’
actions violated the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), on
a variety of grounds, including that the Proclamation exceeded the President’s
authority under INA § 212(f) and conflicted with a variety of other federal statutes.
Second, the individual Plaintiffs, on behalf of the U.S. Petitioner Subclass,
contended that the Proclamation was motivated by discriminatory animus in
violation of the equal protection component of the Fifth Amendment’s Due Process
Clause. Third, all Plaintiffs and classes asserted that the Proclamation was ultra
vires because it exceeded the scope of the power Congress delegated to the
President, conflicted with congressional judgments as reflected in the INA, and
violated the separation of powers by contravening Congress’s extension of certain
“health care-related benefits to legal immigrants.” Fourth, the individual Plaintiffs,
on behalf of the U.S. Petitioner Subclass, alleged that the Proclamation’s
delegation of decisionmaking authority about health insurance matters to “consular
officer[s] with no medical training” violated their procedural due process rights.
On November 1, 2019, Plaintiffs requested a temporary restraining order
halting the Proclamation’s implementation, which was granted the next day. On
November 8, 2019, Plaintiffs filed two motions: one for class certification and one
for a preliminary injunction. Plaintiffs’ request for a preliminary injunction rested
10
on its ultra vires, APA, and due process claims and did not rely on the equal
protection claim. Without resolving the class certification motion or certifying a
class, the district court on November 26, 2019 issued a worldwide preliminary
injunction that enjoined “any action to implement or enforce” the Proclamation.
See Doe #1, 418 F. Supp. 3d at 605.
In finding that Plaintiffs were likely to succeed on the merits, the district
court relied solely on Plaintiffs’ ultra vires claim. See id. at 598 (declining to
address the due process and APA claims). Even though Plaintiffs’ motion did not
squarely raise the issue, the district court held that, at least in the context of the
“domestic policymaking” the court thought was reflected in the Proclamation,
Congress’s delegation of power to promulgate additional classes of inadmissible
aliens under INA § 212(f) was too standardless and “thus fails under the
nondelegation doctrine.”3 Id. at 592 (emphasis in original). The court further held
that the Proclamation violated separation-of-powers principles by effectively
overriding and contravening the carefully crafted limitations that Congress had
3
In their motion for a preliminary injunction, Plaintiffs argued that the “broad
delegation of discretion” in § 212(f) was not “unlimited,” because it was bounded
by the congressional judgments reflected in the other statutory provisions that
Plaintiffs claimed that the Proclamation contravened. Plaintiffs argued that a
broader reading of the President’s discretion under § 212(f) would not be
“consistent with the non-delegation doctrine.” The motion thus argued only that
§ 212(f) had to be construed consistently with the nondelegation doctrine; it did not
argue that the congressional delegation of power actually did violate the
nondelegation doctrine.
11
placed, in INA § 212(a)(4), see 8 U.S.C. § 1182(a)(4), on the admission of aliens
who are likely to become a “public charge.”4 418 F. Supp. 3d at 595. The court
expressly declined to address “whether the Proclamation also contravenes or
overrides various healthcare laws and other immigration laws and provisions, as
argued by Plaintiffs.” Id. at 597 n.6.
Having found a likelihood of success on the merits, the district court further
held that all Plaintiffs were likely to suffer irreparable harm in the absence of
preliminary relief. Id. at 598–99. In addition to the irreparable harm that the court
posited from delays in the visa process, the court stated that the individual
Plaintiffs “cannot afford the plans that are available to them.” Id. at 598. The
court further specifically held that two of the individual Plaintiffs “are not likely to
meet the requirements of the Proclamation, and there is no indication that they will
otherwise fail any of the requirements” of § 212(a) for obtaining visas. Id. The
court also concluded that LatNet would suffer irreparable harm from “hav[ing] to
continue to divert resources and abandon a significant portion of its core mission if
the Proclamation were allowed to go into effect.” Id. at 599. Weighing the
equities and the public interest, the district court concluded that they “tip[ped]
4
As noted, the district court did not reach Plaintiffs’ due process or APA claims.
The court also did not separately address whether the Proclamation was a proper
exercise of Executive authority under INA § 215(a)(1), 8 U.S.C. § 1185(a)(1). See
Doe #1, 418 F. Supp. 3d at 586 n.2.
12
sharply in favor of Plaintiffs.” Id. at 602. Finally, the court held that a worldwide
injunction was “necessary to provide Plaintiffs and putative class members with
relief at this stage of the litigation and to preserve the status quo.” Id. at 604–05.
On December 4, 2019, the Government timely appealed the preliminary
injunction and sought an immediate administrative stay from this court.
Concluding that there was no “sufficient exigency to justify changing the status
quo,” a motions panel of this court, by a 2-1 vote, denied the requested
administrative stay. See Doe #1 v. Trump, 944 F.3d 1222, 1223 (9th Cir. 2019).
On April 7, 2020, more than four months after issuing the preliminary
injunction, the district court granted, “with a modest modification of the requested
definition” of the U.S. Petitioner Subclass, Plaintiffs’ motion for certification of
two classes under Federal Rule of Civil Procedure 23(b)(2). Doe #1 v. Trump, 335
F.R.D. 416, 421 (D. Or. 2020).
On May 4, 2020, the motions panel, again by a 2-1 vote, denied the
Government’s motion for a stay of the preliminary injunction pending appeal. Doe
#1 v. Trump, 957 F.3d 1050 (9th Cir. 2020). In denying the motion, the majority
was at pains to emphasize that it was not “prejudg[ing] the merits of the appeal,”
but was only addressing whether, in its stay motion, the Government had “met the
high standard” for a stay, viz., whether the Government’s moving papers had
demonstrated “a strong likelihood of success on the merits.” Id. at 1062; see also
13
id. at 1067 (“Again, we do not prejudge the resolution of the merits” of Plaintiffs’
argument that the Proclamation “effectively rewrit[es] provisions of the INA”
because “the question is whether the government has shown a strong likelihood of
success.”); id. (“In deference to the merits panel, we decline to address the
probable likelihood of success for either party” on the nondelegation claim.); id. at
1070 (“We do not prejudge the consideration of the merits appeal.”). In view of
the motions panel’s firmly expressed intention not to prejudge any aspect of the
merits, and its explicit reliance on the higher burden the Government faced at the
stay stage, we do not view the motions panel opinion as precluding us from re-
examining the merits of the issues afresh in light of the now-completed merits
briefing and argument.
We have jurisdiction over the Government’s appeal of the preliminary
injunction under 28 U.S.C. § 1292(a)(1).
II
The Government has not challenged Plaintiffs’ Article III standing, either in
its opposition to the preliminary injunction motion below or in its briefs in this
court. Nonetheless, we have “an independent obligation to assure that standing
exists, regardless of whether it is challenged by any of the parties,” Summers v.
Earth Island Inst., 555 U.S. 488, 499 (2009), and the Plaintiffs’ showing of injury
in support of the requested injunction provides a sufficient basis for evaluating
14
their Article III standing as well.
Organizations can assert Article III standing in their own right, Havens
Realty Corp. v. Coleman, 455 U.S. 363, 378–79 (1982), or they may rely upon the
Article III standing of their members under the doctrine of associational standing,
Hunt v. Washington State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977). In
arguing in the district court that it had suffered irreparable injury, LatNet relied on
a Havens Realty theory rather than on associational standing. In Havens Realty,
the Supreme Court held that a fair housing organization that “provide[d]
counseling and referral services for low- and moderate-income homeseekers”
suffered a cognizable injury-in-fact for Article III purposes when the defendants’
alleged racially discriminatory steering practices caused the organization to
“devote significant resources” in assisting such homeseekers to “identify and
counteract” the defendants’ practices, thereby “frustrat[ing]” the organization’s
“efforts to assist equal access to housing through counseling and other referral
services.” 455 U.S. at 379. We conclude that LatNet’s showing below was
sufficient to establish injury-in-fact under Havens Realty.
LatNet submitted unchallenged evidence in the district court stating that,
even before the Proclamation was promulgated, LatNet had been providing
information about immigrant visas to clients and “connect[ing] them to legal
service providers to assist family reunification applications through the immigrant
15
visa process.” Because many of LatNet’s clients are concerned that their relatives
may be unable to meet the Proclamation’s requirements, LatNet’s ongoing
counseling efforts have been increasingly devoted to providing “individual
consultations with members of [its] community who are concerned about how the
implementation of the Proclamation will affect their ability . . . to sponsor family
members in the process of applying for an immigrant visa.” LatNet described how
these counseling efforts, as well as other “community education efforts” to address
community members’ concerns about the Proclamation, caused it to divert
personnel and resources from other tasks to assisting in Proclamation-related
activities. LatNet’s evidence showed that, all told, “up to 15% of paid staff
members’ weekly time during business hours” was devoted to “responding to
client concerns and inquiries” about the Proclamation. Because the Proclamation
led to a significant increase in the demand and need for LatNet’s pre-existing
counseling programs, and caused LatNet to shift resources from other activities in
order to address those efforts to counteract the Proclamation, “there can be no
question that the organization has suffered injury in fact” under Havens Realty.
455 U.S. at 379. The injury is also fairly traceable to the Proclamation and would
be redressed by the requested equitable and declaratory relief against the
Proclamation. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).
LatNet therefore has Article III standing. Id.16
And because LatNet has standing, we need not address whether the
individual Plaintiffs also have standing. See Secretary of the Interior v. California,
464 U.S. 312, 319 n.3 (1984) (“Since the State of California clearly does have
standing, we need not address the standing of the other [plaintiffs], whose position
here is identical to the State’s.”); Leonard v. Clark, 12 F.3d 885, 888 (9th Cir.
1993) (“The general rule applicable to federal court suits with multiple plaintiffs is
that once the court determines that one of the plaintiffs has standing, it need not
decide the standing of the others.”).5 We therefore proceed to the merits of
Plaintiffs’ request for a preliminary injunction.
III
“We review the district court’s decision to grant or deny a preliminary
injunction for abuse of discretion.” Southwest Voter Registration Educ. Project v.
Shelley, 344 F.3d 914, 918 (9th Cir. 2003) (en banc). “The district court’s
interpretation of the underlying legal principles, however, is subject to de novo
review and a district court abuses its discretion when it makes an error of law.” Id.“A plaintiff seeking a preliminary injunction must establish that he is likely
5
The standing of the other Plaintiffs might have mattered if, upon turning to the
merits, we had concluded that the Proclamation was likely invalid, because the
respective standing of the Plaintiffs could affect the scope of the injunctive relief
that would then be warranted to redress the Plaintiffs’ injuries. But given that we
conclude that Plaintiffs are unlikely to succeed on the merits, we may consequently
deny preliminary injunctive relief to the remaining Plaintiffs without considering
their standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 98 (1998).
17
to succeed on the merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his favor, and that an
injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). “Likelihood of success on the merits is the most important
Winter factor.” Disney Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir.
2017) (simplified). When the Government is a party to a case, “the balance of the
equities and public interest factors merge.” Padilla v. Immigration & Customs
Enf’t, 953 F.3d 1134, 1141 (9th Cir. 2020).
We turn first to whether the district court correctly held that Plaintiffs were
likely to succeed on the merits of their ultra vires cause of action, which alleges
that the Proclamation exceeds the President’s delegated authority, conflicts with
congressional judgments embodied in the INA, and violates the separation of
powers. We conclude that Plaintiffs have not demonstrated a likelihood of success
as to any of their challenges to the Proclamation.
A
We note, preliminarily, that the Government has not raised any contention in
this court that Plaintiffs lack an ultra vires cause of action, nor has it argued that
Plaintiffs do not fall within any relevant zone of interests that might be applicable
to such a claim. Cf. Sierra Club v. Trump, 963 F.3d 874, 890–95 (9th Cir. 2020),
cert. granted, 2020 WL 6121565 (Oct. 19, 2020). Moreover, because such issues
18
go to the existence of a cause of action and not to our jurisdiction, see Lexmark
Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 127–28 (2014), we
have no obligation to address them sua sponte. We therefore assume that, to the
extent that they have Article III standing, Plaintiffs may assert an ultra vires cause
of action to challenge the Proclamation on constitutional and statutory grounds.
The Government has, however, raised one threshold issue concerning the
asserted justiciability of the merits. Specifically, the Government contends that all
of Plaintiff’s claims are ultimately statutory in nature, and the Government asserts
that, under the consular nonreviewability doctrine, the courts cannot review such
non-constitutional challenges to the political branches’ decisions to exclude aliens.
We need not decide whether the Government is correct in arguing that all of
Plaintiffs’ claims are statutory claims rather than constitutional claims.6 Even
6
As noted earlier, Plaintiffs did not assert a straight nondelegation constitutional
challenge to § 212(f) in the district court, see supra note 3, and they do not defend
the district court’s reasoning on that score on appeal. Rather, as they did below,
Plaintiffs assert only the more limited argument that, if the court were to conclude
that the statutory limitations that Plaintiffs invoke do not constrain the President’s
exercise of the delegated authority under § 212(f), then the statute would raise
serious nondelegation concerns. However, Plaintiffs do assert in this court (and
asserted below) that the President’s disregard of the congressionally imposed
limitations on his authority violate the constitutional separation of powers, and the
district court agreed. See supra at 10–12. Citing Dalton v. Specter, 511 U.S. 462,
471–77 (1994), the Government contends that these separation-of-powers claims
are actually statutory claims dressed in constitutional garb and are therefore subject
to any limitations that are applicable to statutory claims. For the reasons explained
in the text, we do not need to address this argument.
19
assuming that they are, we conclude that there is no obstacle to our disposition on
the merits here. As it likewise told the Supreme Court in Trump v. Hawaii, 138
S. Ct. 2392, 2407 (2018), the Government expressly reaffirmed at oral argument
that the consular nonreviewability doctrine is not a jurisdictional limit. It follows
that there is no bar to our rejecting Plaintiffs’ claims on the merits without
addressing this threshold issue. See id.; cf. Steel Co., 523 U.S. at 89–102.
Because, as explained below, we conclude that Plaintiffs’ claims are likely to fail
on the merits, we have no obligation to reach the consular nonreviewability issue,
and like the Supreme Court in Trump v. Hawaii, we decline to do so.7
B
Plaintiffs’ primary contention on appeal is that the Proclamation is not a
lawful exercise of the President’s delegated authority under INA § 212(f). That
section provides, in relevant part:
Whenever the President finds that the entry of any aliens or of
any class of aliens into the United States would be detrimental
to the interests of the United States, he may by proclamation,
and for such period as he shall deem necessary, suspend the
entry of all aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of aliens any
restrictions he may deem to be appropriate.
8 U.S.C. § 1182(f). The Supreme Court recently analyzed the scope of the
7
Of course, if we had concluded that Plaintiffs were likely to succeed on the
merits, we would then have been required to address the Government’s properly
asserted arguments concerning the consular nonreviewability doctrine.
20
President’s delegated authority under § 212(f) when it reversed the grant of a
preliminary injunction blocking the enforcement of a different presidential
proclamation in Trump v. Hawaii, 138 S. Ct. at 2423. The Court’s analysis in that
case therefore frames the inquiry into the merits in this one.
In Trump v. Hawaii, the Supreme Court addressed a presidential
proclamation that “placed entry restrictions on the nationals of eight foreign states
whose systems for managing and sharing information about their nationals the
President deemed inadequate.” 138 S. Ct. at 2404. A panel of this court upheld a
preliminary injunction against the proclamation, concluding that it “‘conflicts with
the INA’s finely reticulated regulatory scheme’ by addressing ‘matters of
immigration already passed upon by Congress.’” Id. at 2406–07 (quoting Hawaii
v. Trump, 878 F.3d 662, 685, 690 (9th Cir. 2017)). The Supreme Court rejected
this broad theory that the President cannot use § 212(f) to impose additional
restrictions that address subject areas already expressly covered by more limited
restrictions elsewhere within the INA. Instead, the Court was willing only to
“assume” that § 212(f) “does not allow the President to expressly override
particular provisions of the INA.” Id. at 2411 (emphasis added). Applying this
standard, the Court concluded that the plaintiffs in that case had failed to establish
“any contradiction with another provision of the INA.” Id. at 2412 (emphasis
added). And because the proclamation otherwise satisfied the prerequisites of
21
§ 212(f), the Court held that the proclamation was “squarely within the scope of
Presidential authority under the INA.” Id. at 2415. Under these standards,
Proclamation No. 9945 is likewise well within the President’s authority under
§ 212(f).
1
In addressing the scope of the President’s delegated authority under § 212(f),
the Trump v. Hawaii Court observed that the statutory text “exudes deference to
the President in every clause” and “grants the President sweeping authority to
decide whether to suspend entry, whose entry to suspend, and for how long.” 138
S. Ct. at 2408, 2413; see also id. at 2408 (stating that § 212(f) “vests the President
with ‘ample power’ to impose entry restrictions in addition to those elsewhere
enumerated in the INA” (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155,
187 (1993))). The Court identified three limitations on the President’s authority in
the text of § 212(f), and it held that all of them were satisfied in the case before it.
Id. at 2408–10. We conclude that the same is true here.
First, the Court stated that the “sole prerequisite set forth” in § 212(f) for
imposing additional restrictions is that “the President ‘find[ ]’ that the entry of the
covered aliens ‘would be detrimental to the interests of the United States.’” 138
S. Ct. at 2408 (quoting § 212(f)) (emphasis added). As in Trump v. Hawaii, the
“President has undoubtedly fulfilled that requirement here.” Id. The President
22
expressly made such a finding in the Proclamation, concluding that unrestricted
entry of immigrants who could not demonstrate approved insurance coverage or
ability to pay for foreseeable healthcare costs would be “detrimental to the interests
of the United States.” Proclamation No. 9945, 84 Fed. Reg. at 53991.
Plaintiffs nonetheless contend that the finding required by § 212(f) has not
been made because, in their view, the President’s supporting explanation for that
finding in the Proclamation is inadequate. The Supreme Court rejected a similar
argument in Trump v. Hawaii, 138 S. Ct. at 2409, and we reject it here as well.
There, the Court held that the “plaintiffs’ request for a searching inquiry into the
persuasiveness of the President’s justifications” for the proclamation at issue was
“inconsistent with the broad statutory text and the deference traditionally accorded
the President in this sphere.” Id. Indeed, the Court found it “questionable” that
§ 212(f)’s requirement to make a finding is accompanied by any sort of
requirement to explain those findings in detail. Id. Even so, the Trump v. Hawaii
Court noted that the proclamation at issue in that case was more detailed than any
proclamation previously issued under § 212(f), some of which contained merely
barebones explanations as short as one or five sentences long. Id. (citing
Proclamation No. 6958, 61 Fed. Reg. 60007 (Nov. 26, 1996) (President Clinton),
Proclamation No. 4865, 46 Fed. Reg. 48107 (Oct. 1, 1981) (President Reagan)).
Here, the Proclamation concisely explains the adverse impact that
23
uncompensated healthcare costs have on the American people, federal and state
government budgets, private and public hospitals, and other stakeholders.
Proclamation No. 9945, 84 Fed. Reg. at 53991. It also points out that lawful
immigrants are three times more likely than U.S. citizens to lack health insurance,
further exacerbating the problem of uncompensated healthcare costs on the
American healthcare system. Id. Considered in light of the substantial deference
owed to the President in this area, Trump v. Hawaii, 138 S. Ct. at 2409, these
explanations are adequate to support the conclusion that restricting the immigration
of persons who lack unsubsidized health insurance will avoid an impact that
“would be detrimental to the interests of the United States,” 8 U.S.C. § 1182(f). In
imposing restrictions under § 212(f), the President “is not required to conclusively
link all of the pieces in the puzzle before courts grant weight to his empirical
conclusions.” 138 S. Ct. at 2409 (simplified). To demand a more “searching
inquiry,” as Plaintiffs seek here, “is inconsistent” with the deference owed to the
President and would improperly shift to the courts the weighing of policy
justifications for additional restrictions under § 212(f). But “[w]hether the
President’s chosen method of addressing perceived risks is justified from a policy
perspective is irrelevant to the scope” of his authority under § 212(f). Id.
(simplified).
24
Second, the Supreme Court noted that § 212(f)’s reference to “suspend[ing]”
the entry of particular classes of aliens indicates that the limitations imposed under
that section must be temporally limited. 138 S. Ct. at 2410. In elaborating on this
requirement, the Court rejected the notion “that the President is required to
prescribe in advance a fixed end date for the entry restrictions” and instead held
that it is sufficient for the President to tie the duration of additional restrictions on
entry, “implicitly or explicitly, to the resolution of the triggering condition.” Id.Plaintiffs contend that the Proclamation fails under this standard because the
asserted triggering conditions are too vaguely stated and because it is “impossible”
to determine when those conditions “will be resolved.” We disagree. As in Trump
v. Hawaii, the Proclamation here establishes a process to ensure that the continued
propriety of its restrictions is subject to a systematic and regular review. Id.Specifically, the Proclamation instructs the Secretary of State to submit to the
President, “in consultation with” certain agency heads, a report addressing “the
continued necessity of and any adjustments that may be warranted to the
[Proclamation’s] suspension and limitation on entry.” Proclamation No. 9945, 84
Fed. Reg. at 53993. Such a report must be submitted “within 180 days” of the
Proclamation’s effective date, and again annually thereafter. Id. The Proclamation
makes clear that “[i]f the Secretary of State, in consultation with the heads of other
appropriate executive departments and agencies, determines that circumstances no
25
longer warrant the continued effectiveness of the suspension and limitation on
entry,” the President is to be “immediately” advised. Id. As confirmed by the
findings that underlie the Proclamation and by the title of the section that requires
this periodic review, the continued need for these restrictions is to be considered in
light of what the available evidence then shows about the “financial burdens
imposed by immigrants on the healthcare system.” Id. (capitalization omitted).
Plaintiffs assert—and the dissent agrees, see Dissent at 14—that this standard is
too uncertain and open-ended. That is wrong. Nothing in Trump v. Hawaii
requires a bright-line trigger for terminating additional restrictions that have been
imposed under § 212(f), and the sort of diplomatic and security judgments the
Court upheld as adequate triggering (and terminating) conditions in that case are
no less multi-faceted and inexact than the consideration of financial burdens
required here. 138 S. Ct. at 2410 (additional restrictions may be tied to resolution
of a “diplomatic dispute or policy concern”).
Third, the Court held that § 212(f) requires the President to properly identify
a “class of aliens” who are subject to the additional restrictions. Id. Plaintiffs do
not contest that the Proclamation adequately defines the specific class of persons
who are subject to its restrictions, and so this condition is met as well.
We therefore hold that the Proclamation comports with the textual
limitations of § 212(f) as set forth in Trump v. Hawaii.
26
2
Plaintiffs contend that the Proclamation nevertheless exceeds the President’s
authority under § 212(f) because, in their estimation, the Proclamation conflicts
with other provisions of law. In addressing similar arguments in Trump v. Hawaii,
the Supreme Court rejected this court’s view that an entry restriction promulgated
under § 212(f) is invalid if it “address[es] ‘matters of immigration already passed
upon by Congress’” and thereby “‘conflicts with the INA’s finely reticulated
regulatory scheme.’” 138 S. Ct. at 2406–07 (quoting 878 F.3d at 685, 690). In
lieu of this broad congressional-displacement theory, the Supreme Court was
willing only to “assume” that § 212(f) “does not allow the President to expressly
override particular provisions of the INA.” Id. at 2411 (emphasis added).8 We
likewise assume that such a limitation applies to § 212(f), and we further assume
that it also precludes the President from expressly overriding provisions of statutes
other than the INA, such as the Affordable Care Act (“ACA”). This standard
would be met, under Trump v. Hawaii, when there is a “conflict between the statute
and the Proclamation that would implicitly bar” the Proclamation’s additional
restriction. 138 S. Ct. at 2411 (emphasis added). Such a “contradiction with
another provision of the INA” would exist where, for example, “‘Congress has
8
Even then, the Court was willing only to “assume” this more limited proposition
arguendo; it did not hold that such a limitation applies to § 212(f). See 138 S. Ct.
at 2411.
27
stepped into the space and solved the exact problem’” addressed by the
Proclamation. Id. at 2412 (emphasis added).9 Here, Plaintiffs failed to show a
likelihood of success on their claims that the Proclamation conflicts with other
statutes under these standards.
a
Noting that the Proclamation’s definition of “[a]pproved health insurance”
includes a “health plan offered in the individual market within a State” only if the
plan is “unsubsidized,” see Proclamation No. 9945, 84 Fed. Reg. at 53992
(emphasis added), Plaintiffs contend that the Proclamation conflicts with
Congress’s decision in the ACA to make subsidized plans in the individual market
available to lawful immigrants. The Government argues that Plaintiffs did not
properly present this issue below, and it notes that the district court’s preliminary
injunction order does not resolve it. We need not decide whether this contention
9
The dissent rests on the strawman argument that we have adopted a sort of
reverse repeal-by-implication standard, under which the requisite conflict would
not exist unless the statute (had it been enacted later) would be thought to “repeal”
by implication the Proclamation’s rules. See Dissent at 4–5. Nothing in our
opinion adopts any such standard; rather, we have simply followed the applicable
standards as they have been articulated by Trump v. Hawaii. The dissent, by
contrast, would find the requisite conflict with a statutory provision whenever a
restriction adopted by the President under § 212(f) is “inconsistent” with
“congressional intent” behind that provision or “displace[s]” congressional
judgments in the same general area. See Dissent at 8, 10. That seems akin to the
more amorphous standard that we had adopted, and that the Supreme Court
rejected, in Trump v. Hawaii.
28
was adequately raised below, because we conclude that it has no merit in any
event.
The ACA “seeks to make insurance more affordable by giving refundable
tax credits to individuals with household incomes between 100 percent and 400
percent of the federal poverty line.” King v. Burwell, 576 U.S. 473, 482 (2015)
(citing 26 U.S.C. § 36B). An “alien lawfully present in the United States” with a
household income below a certain threshold may be eligible for such tax credits.
26 U.S.C. § 36B(c)(1)(B). Plaintiffs contend that the Proclamation “overrides” the
ACA scheme by “den[ying] entry to immigrants who would use the assistance
Congress provided for comprehensive coverage” and by “requir[ing] new
immigrants to reject benefits Congress expressly intended for them to have.” We
disagree.
The Proclamation does not “expressly override” this feature of the ACA,
Trump v. Hawaii, 138 S. Ct. at 2411, because the two provisions operate in
different spheres. The ACA extends tax credits only to aliens who already are
“lawfully present in the United States.” See 26 U.S.C. § 36B(c)(1)(B)(ii); see also
42 U.S.C. § 18032(f)(1)(A)(ii), (3) (providing that, to purchase any insurance in
the exchanges created under the ACA, whether subsidized or unsubsidized, the
alien must be “lawfully present” and a resident of the relevant State). The
Proclamation, by contrast, applies “only to aliens seeking to enter the United States
29
pursuant to an immigrant visa.” See Proclamation No. 9945, 84 Fed. Reg. at
53992. The Proclamation therefore does not prevent aliens who are “lawfully
present in the United States” from purchasing subsidized insurance plans; it instead
creates an additional requirement that an alien must satisfy before he or she may
receive an immigrant visa. Put simply, the Proclamation excludes only those who,
at the threshold, cannot arrange unsubsidized coverage or cannot cover their own
medical costs. But as the Government expressly conceded at oral argument, after
an alien satisfies the requirements of the Proclamation and gains lawful permanent
residence, nothing in the Proclamation prevents the alien from then obtaining
subsidized insurance plans as provided for under the ACA.10 There is thus no
conflict between the Proclamation and the ACA scheme.
For similar reasons, we also conclude that the Proclamation does not
expressly override the provisions of the Children’s Health Insurance Program
Reauthorization Act (“CHIPRA”) that authorize States to extend Medicaid
coverage to certain specified lawful aliens. See, e.g., 42 U.S.C. § 1396b(v)(4).
10
In particular, the Proclamation’s prohibition on any “willful misrepresentation of
a material fact,” see Proclamation No. 9945, 84 Fed. Reg. at 53993, would not be
violated simply because an alien who was admitted under the Proclamation later
obtained subsidized insurance. Because the Proclamation only conditions receipt
of a visa on a showing that the alien will be “covered by approved health insurance
. . . within 30 days of the alien’s entry into the United States,” id. at 53992
(emphasis added), an alien is not required to make any representation about what
he or she will do after that initial coverage by unsubsidized insurance.
30
Because the Proclamation applies “only to aliens seeking to enter the United States
pursuant to an immigrant visa,” Proclamation No. 9945, 84 Fed. Reg. at 53992,
and the relevant CHIPRA provisions apply only to those who already “are lawfully
residing in the United States,” 42 U.S.C. § 1396b(v)(4)(A), we do not discern any
sense in which the Proclamation may be said to “expressly override” these
provisions of CHIPRA.
b
Plaintiffs also contend, and the district court held, that they are likely to
succeed on their argument that the Proclamation conflicts with the so-called
“public charge” provision of the INA. We again disagree.
Section 212(a)(4)(A) of the INA renders inadmissible any alien who “is
likely at any time to become a public charge.” 8 U.S.C. § 1182(a)(4)(A). In
deciding whether an alien is likely to become a public charge, a consular officer
must consider, “at a minimum,” an alien’s age, health, family status, assets,
resources, financial status, education, and skills. Id. § 1182(a)(4)(B)(i). No single
factor is dispositive; rather, the statute requires a holistic approach. See City &
Cnty. of San Francisco v. USCIS, 944 F.3d 773, 796 (9th Cir. 2019) (“If anything
has been consistent, it is the idea that a totality-of-the-circumstances test governs
public-charge determinations.”); see also City & Cnty. of San Francisco v. USCIS,
981 F.3d 742, 752 (9th Cir. 2020) (noting that an Attorney General decision in
31
1964 “collected authorities indicating that it is the totality of circumstances that
must be considered in order to determine whether ‘the burden of supporting the
alien is likely to be cast on the public’” (citation omitted)). Plaintiffs argue that the
Proclamation impermissibly conflicts with this holistic approach by creating a
single-factor test based solely on healthcare coverage.11 This contention fails.
At the broadest level, there is undoubtedly some overlap between the INA’s
exclusion of those “likely . . . to become a public charge,” 8 U.S.C.
§ 1182(a)(4)(A), and the Proclamation’s exclusion of those who “will financially
burden the United States healthcare system,” see Proclamation No. 9945, 84 Fed.
Reg. at 53992. As a result, Plaintiffs’ argument might have had substantial force
under the opinion of this court that was reversed in Trump v. Hawaii, where we
had held that the President could not impose additional restrictions under § 212(f)
that “address[ed] ‘matters of immigration already passed upon by Congress.’” 138
S. Ct. at 2407 (quoting 878 F.3d at 690). But the Supreme Court held that such
overlap was not enough, and that, at the very least, the plaintiffs had to show that
11
Because Plaintiffs’ claim here is based on an asserted conflict between the
“public charge” provision’s totality-of-the-circumstances approach and the
Proclamation’s specific focus on the ability to cover healthcare expenses, the issue
before us does not turn on the distinct question concerning the scope of the “public
charge” provision that divided the panel in our recent decision in City & County of
San Francisco v. USCIS. See 981 F.3d at 756–58 (holding, by a 2-1 vote, that
“public charge” meant “long-term dependence on government support, and had
never been interpreted to encompass temporary resort to supplemental non-cash
benefits” (emphasis added)).
32
the proclamation at issue there “expressly over[o]de particular provisions of the
INA.” Id. at 2411. Thus, even though the sort of security and vetting issues
addressed by the proclamation challenged in Trump v. Hawaii were also addressed
in the INA, the Court’s higher standard was not met because the result was “not a
situation where ‘Congress has stepped into the space and solved the exact
problem.’” Id. at 2412 (emphasis added).
The same is true here. The Proclamation does not override the public charge
provision or its multi-factor inquiry; rather, the Proclamation merely creates an
additional, separate ground for inadmissibility, which is within the President’s
authority under § 212(f). See id. at 2408 (stating that § 212(f) “vests the President
with ‘ample power’ to impose entry restrictions in addition to those elsewhere
enumerated in the INA” (citation omitted)). The public charge provision is
concerned only with public costs broadly conceived, while the Proclamation is
concerned with a specific type of costs—those involving healthcare—and with the
fact that a significant portion of such unreimbursed costs is absorbed by private
entities in the form of higher insurance premiums and hospital losses. See
Proclamation No. 9945, 84 Fed. Reg. at 53991. Thus, while the problems and
approaches overlap, they do not solve the “exact” same problem. 138 S. Ct. at
2412.
Because an alien seeking an immigrant visa must not be inadmissible under
33
any of the numerous inadmissibility grounds in § 212, an immigrant visa applicant
would need to satisfy the requirements of both the public charge provision and the
Proclamation. See Proclamation No. 9945, 84 Fed. Reg at 53993 (specifying that
the Proclamation’s review process “is separate and independent” from that of
“other statutes, regulations, or proclamations”); see generally 8 U.S.C. § 1182. In
short, the suspension of entry created by the Proclamation is an additional
inadmissibility ground distinct from the public charge provision. Thus, the
Proclamation does not conflict with the public charge provision and is not an
unlawful exercise of the President’s authority on that basis.
c
Plaintiffs’ arguments based on the Violence Against Women Act
(“VAWA”) fail for the same reason. VAWA’s amendments to the INA expressly
exempt from the INA’s public charge provision certain qualifying alien survivors
of specified violent crimes. See, e.g., 8 U.S.C. § 1182(a)(4)(E); see also id.§ 1101(a)(51). Plaintiffs contend that the Proclamation conflicts with the INA’s
VAWA amendments because it does not similarly exempt crime victims from its
mandate. This assertion that the Proclamation does not mirror the various details
of the public charge provision is simply a variant of the same arguments that we
rejected earlier. The Proclamation does nothing to override the VAWA
amendments, because an alien who satisfies VAWA’s eligibility requirements is
34
still exempt from the INA’s public charge provision. But VAWA did not exempt
those crime victims who satisfy its requirements from all grounds of
inadmissibility in the INA, and the President was not required to duplicate that
exception merely because the Proclamation overlaps in certain respects with the
public charge provision.
* * *
Accordingly, we conclude that the Proclamation’s restrictions rest on a valid
exercise of the authority delegated in § 212(f) and that those restrictions do not
violate any of the other congressional enactments on which Plaintiffs rely.12
C
Finally, we reject the district court’s contention that, to the extent that
§ 212(f) allows the President to impose additional entry restrictions based on
“domestic policymaking” concerns, § 212(f) itself violates the nondelegation
doctrine. See 418 F. Supp. 3d at 592.
As noted earlier, Plaintiffs pointedly avoid defending this holding in their
appellate briefing, instead making the more limited argument that the statute would
violate the nondelegation doctrine only to the extent that it were construed as
“plac[ing] no constraints on the President’s power to exclude prospective
12
As such, Plaintiffs’ arguments that the Proclamation impermissibly overrides
congressional judgments in violation of the separation of powers likewise fails.
35
immigrants.” But that is not how the Supreme Court in Trump v. Hawaii, or we in
this case, have construed § 212(f). On the contrary, the Supreme Court articulated
several statutory requirements that must be satisfied in connection with an
invocation of § 212(f), and it further assumed that the specific requirements of the
INA could not be overridden through such an invocation. 138 S. Ct. at 2408–15.
We have applied the same limitations and the same assumptions here. See supra at
20–35. Even if these various limitations collectively provide only a modest
constraint on the “comprehensive delegation” contained in § 212(f), see id. at
2408, we have little difficulty concluding that they sufficiently provide “an
intelligible principle to which the person or body authorized to exercise the
delegated authority is directed to conform.” Gundy v. United States, 139 S. Ct.
2116, 2123 (2019) (plurality) (simplified). That is enough to defeat any
nondelegation challenge to § 212(f).
Contrary to what the district court concluded, it makes no difference whether
the additional entry restrictions are imposed under § 212(f) based on assertedly
domestic policy concerns. The district court’s demand for additional congressional
guidance when “domestic” concerns are at issue lacks a principled basis and is
unworkable: because all additional restrictions under § 212(f) on who may enter
the United States are ultimately based on the “detrimental” impact of those aliens’
presence, see 8 U.S.C. § 1182(f), all such restrictions may be characterized as
36
reflecting “domestic” policy concerns to a greater or lesser degree. Indeed, the
many grounds for inadmissibility in § 212(a) of the INA underscore how the
decision whether to admit an alien can have adverse domestic consequences. See,
e.g., 8 U.S.C. § 1182(a)(1)(A)(i) (aliens with “communicable disease[s] of public
health significance”); id. § 1182(a)(1)(A)(ii) (aliens who have not been vaccinated
“against vaccine-preventable diseases”); id. § 1182(a)(2)(A) (aliens convicted of
certain crimes); id. § 1182(a)(4) (aliens who are likely to become public charges);
id. § 1182(a)(5) (aliens seeking entry for employment purposes whose employment
would “adversely affect the wages and working conditions of workers in the
United States similarly employed”). The district court identified no coherent basis
for insisting that, in delegating authority to impose additional restrictions on who
may immigrate into this country from another nation, Congress must provide
greater guidance when the asserted detrimental impact of such aliens is based on
“domestic” policy concerns.
IV
This court has held that a likelihood of success on the merits is the “‘most
important’ factor” in the preliminary injunction analysis, such that “if a movant
fails to meet this ‘threshold inquiry,’ we need not consider the other factors.”
California v. Azar, 911 F.3d 558, 575 (9th Cir. 2018) (quoting Disney, 869 F.3d at
856). To be sure, this court follows a “‘sliding scale’” approach, in which “‘a
37
stronger showing of one element may offset a weaker showing of another.’” hiQ
Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 992 (9th Cir. 2019) (quoting Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011)). But even
“when the balance of hardships tips sharply in the plaintiff’s favor,” the plaintiff
still must demonstrate “‘serious questions going to the merits.’” hiQ Labs, 938
F.3d at 992 (quoting Alliance, 632 F.3d at 1135). Here, as we have explained,
Plaintiffs have not demonstrated any serious questions going to the merits. Thus,
we need not analyze the other preliminary injunction factors.
V
For the foregoing reasons, the district court abused its discretion in granting
the preliminary injunction enjoining the Proclamation’s implementation. Because
the preliminary injunction should not have been issued in the first instance, we
need not address whether the injunction’s universal scope was overbroad. The
order of the district court is reversed, and the preliminary injunction is vacated.
REVERSED.
38
FILED
Doe #1 v. Trump, No. 19-36020
DEC 31 2020
TASHIMA, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I agree with the district court, Doe #1 v. Trump, 418 F. Supp. 3d 573 (D. Or.
2019), and with the motions panel of this court, Doe #1 v. Trump, 957 F.3d 1050(9th Cir. 2020), that Plaintiffs are likely to succeed on the merits of their ultra vires
cause of action because Presidential Proclamation No. 9945, 84 Fed. Reg. 53,991(Oct. 4, 2019), purports to override immigration policies adopted by Congress.
The Proclamation overrides both the Affordable Care Act (“ACA”), which makes
recently arrived lawful immigrants eligible for subsidized health insurance plans,
26 U.S.C. § 36B(c)(1)(B), and the public charge rule of the Immigration and
Nationality Act (“INA”), which comprehensively addresses the circumstances
under which individuals may be excluded from this country due to their limited
financial means or the financial burdens they will place on others, 8 U.S.C.
§ 1182(a)(4). Although § 212(f) of the INA, 8 U.S.C. § 1182(f) (“§ 212(f)”),
“grants the President broad discretion to suspend the entry of aliens into the United
States,” Trump v. Hawaii, 138 S. Ct. 2392, 2408 (2018), it does not authorize a
President to override congressional policy judgments. The Proclamation therefore
exceeds the President’s authority under § 212(f).
Even if that were not the case, I would have grave doubts for other reasons
about whether the Proclamation falls within the authority delegated to the President
under § 212(f). In contrast to the order upheld by the Supreme Court in Trump v.
Hawaii, Proclamation 9945 has no nexus to national security, addresses a purely
domestic concern (uncompensated health care costs), lacks any conceivable
temporal limit, and works a major overhaul of this nation’s immigration laws
without the input of Congress—a sweeping and unprecedented exercise of
unilateral Executive power.
As the district court observed, “[t]he Proclamation is anticipated to affect
approximately 60 percent of all immigrant visa applicants,” Doe #1, 418 F. Supp.
3d at 597—about 375,000 prospective immigrants a year, Doe #1, 957 F.3d at
1060—requiring them to obtain health insurance plans that are, in many cases,
“legally or practically unavailable” to them, Doe #1, 418 F. Supp. 3d at 583, while
denying them access to the health insurance plans Congress expressly provided
them. Although the Proclamation asserts that these restrictions are needed to
address the national problem of uncompensated health care costs, the evidence in
the record shows that “recent uninsured immigrants use less than one-tenth of one
percent (0.06 percent) of total American medical resources and only 0.08 percent
of emergency room services.” Id. Indeed, although the Proclamation purports to
address uncompensated health care costs, it perversely forces lawful immigrants
into low-quality health insurance options, plans that “often result in significant
2
uncompensated care,” worsening the very problem the Proclamation purports to
address. Id.
Because I agree with the district court and the motions panel as to the
strength of Plaintiffs’ claims, I would hold that the district court properly granted
preliminary injunctive relief. I therefore respectfully dissent.1
I
A
Section 212(f) “grants the President broad discretion to suspend the entry of
aliens into the United States,” vesting “the President with ‘ample power’ to impose
entry restrictions in addition to those elsewhere enumerated in the INA.” Trump v.
Hawaii, 138 S. Ct. at 2408 (quoting Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
155, 187 (1993)). “We may assume,” however, that § 212(f) “does not allow the
President to expressly override particular provisions of the INA.” Id. at 2411.
Under this limitation, the President may not impose entry restrictions under
§ 212(f) where Congress has “implicitly foreclose[d] the Executive” from doing
so, i.e., where there is a “conflict between [a] statute and the Proclamation,” or
“Congress has stepped into the space and solved the exact problem.” Id. at
1
Specifically, I dissent from Part III-B-2 of the majority opinion. I
agree with Part II of the majority opinion, regarding standing, and express no view
as to the remaining parts of the majority’s analysis.
3
2411–12. As Plaintiffs argued in Trump v. Hawaii, the President “may supplement
the INA, but he cannot supplant it” by “countermand[ing] Congress’s considered
policy judgments.” Id. at 2410.
In Trump v. Hawaii, the comparatively narrow additional restrictions on
entry imposed by the proclamation satisfied these requirements because they
“support[ed]” and “promote[d] the effectiveness” of Congress’s own policy
judgments. Id. at 2411. The Court therefore had no occasion to address a
presidential invocation of § 212(f) like the one before us now—a Proclamation that
undermines, rather than complements, Congress’s policy judgments.
The majority opinion and the government’s briefing conclude that the
“expressly override” standard articulated by the Court in Trump v. Hawaii is akin
to the “irreconcilable conflict” standard governing the repeal by implication
doctrine. See, e.g., Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503 (1936)
(“There are two well-settled categories of repeals by implication: (1) Where
provisions in the two acts are in irreconcilable conflict, the later act to the extent of
the conflict constitutes an implied repeal of the earlier one; and (2) if the later act
covers the whole subject of the earlier one and is clearly intended as a substitute, it
will operate similarly as a repeal of the earlier act.”). Because “repeals by
implication are not favored,” id., a court presented with two statutes “will ‘regard
4
each as effective’—unless . . . the two laws are ‘irreconcilable.’” Maine Cmty.
Health Options v. United States, 140 S. Ct. 1308, 1323 (2020) (quoting Morton v.
Mancari, 417 U.S. 535, 550–51 (1974)). So long as “two statutes are capable of
co-existence, it is the duty of the courts, absent a clearly expressed congressional
intention to the contrary, to regard each as effective.” Id. (quoting FCC v.
NextWave Pers. Commc’ns Inc., 537 U.S. 293, 304 (2003)).
The question here, however, is not repeal by implication but rather
determining, as a matter of statutory interpretation, the scope of authority Congress
intended, in the first instance, to delegate to the President under § 212(f). We
certainly do not begin with a presumption that Congress intended to give effect to
the Proclamation, and an interpretation that places limits on the authority delegated
by § 212(f) is not disfavored. The extraordinarily demanding irreconcilable
conflict standard therefore has no place here.
I do not read Trump v. Hawaii as suggesting otherwise. The Court there
chose the term “conflict,” not “irreconcilable conflict,” to describe the assumed
limits of § 212(f). Trump v. Hawaii, 138 S. Ct. at 2408, 2411. And the other word
chosen by the Court—“override”—likewise connotes ordinary rather than
irreconcilable conflict. Although this word can mean “to set aside” or annul, it
more commonly means “to ride over or across,” to “trample.” Override, Merriam-
5
Webster’s Online Dictionary,
https://www.merriam-webster.com/dictionary/override?src=search-dict-hed (last
visited Dec. 10, 2020); see also Override, Webster’s Third New International
Dictionary 1609 (2002); Override, American Heritage Dictionary of the English
Language 1255 (4th ed. 2000). This suggests that, in enacting § 212(f), Congress
did not intend to authorize the President to adopt restrictions on entry that are
inconsistent with, and antagonistic to, its own immigration laws. It strains
credulity to suggest that Congress intended to authorize the President to undermine
its own policy judgments.
Thus, the issue before us is simply whether the Proclamation “overrides”
immigration laws in the common understanding of that word. Plaintiffs need not
show that the Proclamation and congressionally adopted immigration laws are in
irreconcilable conflict—that it is impossible to give effect to both. They need
show only that the Proclamation seriously undermines these laws, or, alternatively,
that “Congress has stepped into the space and solved the exact problem.” Trump v.
Hawaii, 138 S. Ct. at 2412.
B
I would further hold that Plaintiffs have made the required showing here.
6
1
First, Plaintiffs are likely to succeed on their claim that the Proclamation
overrides the ACA, which makes lawful immigrants eligible for subsidized health
insurance plans. See 26 U.S.C. § 36B(c)(1)(B); 42 U.S.C. § 18032(f)(3). Under
the Proclamation, however, a visa applicant cannot rely on a subsidized insurance
plan to gain admission to the country. 84 Fed. Reg. at 53,992. As the motions
panel explained:
Despite Congress’s clear intent to extend these tax credits
to legal immigrants, the Proclamation explicitly excludes
such “subsidized plans” from the list of approved health
insurance plans. As a result, an immigrant attempting to
legally enter the United States will not have access to ACA
tax credits as Congress intended.
Doe #1, 957 F.3d at 1063.
The majority concludes that there is no conflict between the Proclamation
and the ACA scheme because “after an alien satisfies the requirements of the
Proclamation and gains lawful permanent residence, nothing in the Proclamation
prevents the alien from then obtaining subsidized insurance plans as provided for
under the ACA.” Maj. Op. 30 (footnote omitted). That argument is specious. It is
premised on the assumption unsupported by the record that prospective immigrants
will be able to satisfy the Proclamation’s health insurance requirement without
7
relying on the ACA. The district court found, based on the record evidence, that
“the approved insurance plans delineated in the Proclamation were ‘legally or
practically unavailable to intending, or prospective, immigrants.’” Doe #1, 957
F.3d at 1060 (quoting Doe #1, 418 F. Supp. 3d at 583).
The government has shown at most that there is no irreconcilable conflict
between the Proclamation and the ACA: that however much the Proclamation
undermines the ACA, it is at least possible to give effect to both provisions. As
discussed, however, I would not require Plaintiffs to demonstrate irreconcilable
conflict. I would instead require them to show only that the Proclamation is
inconsistent with, and antagonistic to, any reasonable understanding of
congressional intent underlying the ACA. Plaintiffs have made that showing here.
As the motions panel concluded, “the Proclamation bars immigrants from
accessing subsidized insurance plans despite Congress’s express intent to extend
those plans to legal immigrants.” Id. at 1063.
2
Second, Plaintiffs are likely to succeed on their claim that the Proclamation
overrides the public charge rule and the Violence Against Women Act (“VAWA”)
amendments to that rule. The public charge rule provides that “[a]ny alien who . . .
is likely at any time to become a public charge is inadmissible,” and it states that,
8
“[i]n determining whether an alien is inadmissible under this paragraph, the
consular officer or the Attorney General shall at a minimum consider the alien’s
. . . age; . . . health; . . . family status; . . . assets, resources, and financial status;
and . . . education and skills.” 8 U.S.C. § 1182(a)(4)(A)–(B). Since 1882, public
charge determinations have consistently been made under a “totality-of-the-
circumstances test.” City & County of San Francisco v. U.S. Citizenship &
Immigr. Servs., 944 F.3d 773, 796 (9th Cir. 2019).
Plaintiffs argue that the Proclamation conflicts with this rule because it
supplants the totality-of-the-circumstances test with one dispositive factor:
whether an alien can obtain health insurance or afford health care. They argue that
“the Proclamation’s heathcare insurance test cannot be reconciled with the long-
standing congressional judgment about the holistic way to assess admissibility for
immigrants who may financially burden the United States.”
The government plausibly contends in response that the Proclamation
supplements rather than conflicts with the public charge rule. As the Court said in
Trump v. Hawaii, “[f]airly read, [§ 212(f)] vests authority in the President to
impose additional limitations on entry beyond the grounds for exclusion set forth
in the INA.” 138 S. Ct. at 2412. Because the Proclamation purports to address
uncompensated health care costs, some of which are borne by private healthcare
9
providers rather than government, it is possible to argue, as the majority concludes,
that the Proclamation in this respect complements rather than supplants the public
charge rule. Maj. Op. 32.
On balance, however, Plaintiffs likely are correct that Congress never
intended the President to use the authority delegated by § 212(f) in this unusual
manner—to effectively displace Congress’s own judgment about when aliens
should be denied admission for financial reasons. In the public charge rule,
Congress has specifically and comprehensively addressed when, based on financial
status, an alien should be excluded from the United States. The Proclamation
plainly overrides that congressional policy judgment. As the motions panel
concluded, “[t]he Proclamation eviscerates the statutory scheme by making the
acquisition of designated forms of health insurance the sole consideration of
whether an applicant should be excluded from consideration for a family visa [for
financial reasons]. Any argument contending that the Proclamation complements
the public charge statutory scheme is therefore incorrect.” Doe #1, 957 F.3d at
1064 (citation omitted).
The conflict between the Proclamation and the public charge rule is even
clearer when the VAWA amendments to the rule are considered. As the motions
panel explained, “[t]he VAWA amendments exempted from the public charge
10
exclusion certain immigrant relatives of victims of violent crimes, such as felony
assault, sexual assault, incest, kidnapping, or human trafficking,” and “victims of
battering and extreme cruelty.” Doe #1, 957 F.3d at 1062 (citing 8 U.S.C.
§§ 1101(a)(15)(U)(iii), 1154(a)(1)(A)(iii)–(vi)). “Congress expressly provided that
these immigrants—including the spouses, children, and parents of violent crime
victims—were categorically exempt from the financial burden or ‘public charge’
provisions of the INA.” Id. The Proclamation, by contrast, “makes no such
exemption. Rather, it effectively prohibits family members of violent crime
victims from obtaining visas and joining their families in the United States by
declaring them to be financial burdens and ineligible, directly contradicting
VAWA.” Id.Once again, the majority concludes that there is no conflict, “because an
alien who satisfies VAWA’s eligibility requirements is still exempt from the INA’s
public charge provision.” Maj. Op. 35. But again, the majority requires Plaintiffs
to demonstrate an irreconcilable conflict rather than a substantial one. It would
make no sense for Congress to exempt these individuals from the financial burden
requirements of the public charge rule, but to authorize the President to impose a
comparable requirement. In purpose and effect, the Proclamation undoes what
Congress sought to achieve through the VAWA amendments. The Proclamation,
11
therefore, is incompatible with the VAWA amendments to the public charge rule.
The President has, through § 212(f), imposed a second and far stricter version of
the public charge rule’s financial burden test. I am not persuaded that the
discretion afforded to the President by § 212(f) includes the power to override
congressional immigration policy in this unprecedented manner.
II
That the Proclamation impermissibly overrides congressional immigration
policy is sufficient to show that Plaintiffs have shown a strong likelihood of
success on the merits. Even if that were not the case, however, I would have grave
doubts about whether the Proclamation falls within the President’s authority under
§ 212(f).
These doubts begin with the Proclamation’s sweeping, legislative nature. As
the motions panel noted, “[t]he district court concluded that the Proclamation
likely would negatively affect approximately 60% of all immigrant visa
applicants.” Doe #1, 957 F.3d at 1060. “[A]pproximately 375,000 immigrants
each year—primarily those seeking to enter the United States on family-sponsored
petitions—would be affected, and potentially precluded from obtaining an
immigrant visa, by the Proclamation.” Id. Although the Court has made clear that
§ 212(f) “grants the President sweeping authority to decide whether to suspend
12
entry, whose entry to suspend, and for how long,” Trump v. Hawaii, 138 S. Ct. at
2413, I am not aware of any instance in which a President has invoked his
authority under § 212 to work such a profound transformation of immigration law.
See Doe #1, 957 F.3d at 1062 (citing “the well-settled principle that the President’s
powers are executive, not legislative, in nature”).2
In addition, in contrast to the proclamation at issue in Trump v. Hawaii,
Proclamation 9945 does not address “national security risks.” Trump v. Hawaii,
2
Because I conclude that Plaintiffs are likely to succeed on their ultra
vires cause of action, I do not address their separation of powers claim. As the
district court pointed out, however, the Supreme Court has repeatedly emphasized
the central role that Congress has to play in making immigration policy. See, e.g.,
Fiallo v. Bell, 430 U.S. 787, 792 (1977) (“This Court has repeatedly emphasized
that ‘over no conceivable subject is the legislative power of Congress more
complete than it is over’ the admission of aliens.” (quoting Oceanic Steam
Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909))); Galvan v. Press, 347
U.S. 522, 531 (1954) (“[T]hat the formulation of these policies [pertaining to the
entry of aliens and their right to remain here] is entrusted exclusively to Congress
has become about as firmly imbedded in the legislative and judicial tissues of our
body politic as any aspect of our government.”). Although the President also
possesses authority in this area, see United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537, 542 (1950) (“The exclusion of aliens is a fundamental act of
sovereignty. The right to do so stems not alone from legislative power but is
inherent in the executive power to control the foreign affairs of the nation.”), the
role of Congress is central, see Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C.
Cir. 1986) (“The Executive has broad discretion over the admission and exclusion
of aliens, but that discretion is not boundless. It extends only as far as the statutory
authority conferred by Congress and may not transgress constitutional
limitations.”), aff’d by an equally divided court sub nom. Reagan v. Abourezk, 484
U.S. 1 (1987) (per curiam).
13
138 S. Ct. at 2403. It instead “deals with a purely domestic economic problem:
uncompensated healthcare costs in the United States.” Doe #1, 957 F.3d at 1067.
Moreover, the Proclamation does not qualify as a suspension, as the statute
requires. Although § 212(f) does not require the President “to prescribe in advance
a fixed end date for the entry restrictions,” the President must “link the duration of
those restrictions, implicitly or explicitly, to the resolution of the” policy concern
that triggers the suspension. Trump v. Hawaii, 138 S. Ct. at 2410. Section 4(b) of
Proclamation 9945 states:
If the Secretary of State, in consultation with the heads of
other appropriate executive departments and agencies,
determines that circumstances no longer warrant the
continued effectiveness of the suspension or limitation on
entry set forth in section 1 of this proclamation or that
circumstances warrant additional measures, the Secretary
shall immediately so advise the President.
84 Fed. Reg. at 53,993. But the triggering condition at issue—uncompensated
health care costs—has no foreseeable end date. The Proclamation itself, certainly,
cannot meaningfully address the underlying policy concern, as “uninsured
immigrants represent . . . only 2.9% of uninsured adults,” “use less than 0.06% of
total American medical resources,” and use only “0.08% of emergency service
expenditures.” Doe #1, 957 F.3d at 1059. Furthermore, even if the problem of
uncompensated healthcare costs were resolved tomorrow, nothing in the language
14
of the Proclamation suggests that the President would rescind these entry
restrictions. See id. at 1065.
These additional concerns, as Plaintiffs have shown, raise serious questions
of their own about the permissibility of the President’s actions.
III
Because the restrictions imposed by Proclamation No. 9945 are incompatible
with immigration policies adopted by Congress in the ACA, the public charge rule
of the INA, and the VAWA’s amendments to the public charge rule, Plaintiffs have
demonstrated a likelihood of success on the merits.
Accordingly, I respectfully dissent.
15