Trump. v. International Refugee Assistance Project , 198 L. Ed. 2d 643 ( 2017 )

Cite as: 582 U. S. ____ (2017) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–1436 (16A1190) and 16–1540 (16A1191)
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL.
No. 16–1436 (16A1190) v.
INTERNATIONAL REFUGEE ASSISTANCE
PROJECT, ET AL.
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL.
No. 16–1540 (16A1191) v.
HAWAII, ET AL.
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
[June 26, 2017]
PER CURIAM.
These cases involve challenges to Executive Order No.
13780, Protecting the Nation From Foreign Terrorist
Entry Into the United States. The order alters practices
concerning the entry of foreign nationals into the United
States by, among other things, suspending entry of na-
tionals from six designated countries for 90 days. Re-
spondents challenged the order in two separate lawsuits.
They obtained preliminary injunctions barring enforce-
ment of several of its provisions, including the 90-day
suspension of entry. The injunctions were upheld in large
measure by the Courts of Appeals.
The Government filed separate petitions for certiorari,
as well as applications to stay the preliminary injunctions
2 TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE
PROJECT
Per Curiam
entered by the lower courts. We grant the petitions for
certiorari and grant the stay applications in part.
I
A
On January 27, 2017, President Donald J. Trump signed
Executive Order No. 13769, Protecting the Nation From
Foreign Terrorist Entry Into the United States. 82 Fed.
Reg. 8977 (EO–1). EO–1 addressed policies and proce-
dures relating to the entry of foreign nationals into this
country. Among other directives, the order suspended
entry of foreign nationals from seven countries identified
as presenting heightened terrorism risks—Iran, Iraq,
Libya, Somalia, Sudan, Syria, and Yemen—for 90 days.
§3(c). Executive officials were instructed to review the
adequacy of current practices relating to visa adjudica-
tions during this 90-day period. §3(a). EO–1 also modified
refugee policy, suspending the United States Refugee
Admissions Program (USRAP) for 120 days and reducing
the number of refugees eligible to be admitted to the United
States during fiscal year 2017. §§5(a), (d).
EO–1 was immediately challenged in court. Just a week
after the order was issued, a Federal District Court en-
tered a nationwide temporary restraining order enjoining
enforcement of several of its key provisions. Washington
v. Trump, 2017 WL 462040 (WD Wash., Feb. 3, 2017). Six
days later, the Court of Appeals for the Ninth Circuit
denied the Government’s emergency motion to stay the
order pending appeal. Washington v. Trump, 847 F.3d
1151 (2017). Rather than continue to litigate EO–1, the
Government announced that it would revoke the order and
issue a new one.
A second order followed on March 6, 2017. See Protect-
ing the Nation From Foreign Terrorist Entry Into the
United States, Exec. Order No. 13780, 82 Fed. Reg. 13209
(EO–2). EO–2 describes “conditions in six of the . . . coun-
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Per Curiam
tries” as to which EO–1 had suspended entry, stating that
these conditions “demonstrate [that] nationals [of those
countries] continue to present heightened risks to the
security of the United States,” §1(e), and that “some of
those who have entered the United States through our
immigration system have proved to be threats to our
national security,” §1(h).
Having identified these concerns, EO–2 sets out a series
of directives patterned on those found in EO–1. Several
are relevant here. First, EO–2 directs the Secretary of
Homeland Security to conduct a global review to deter-
mine whether foreign governments provide adequate
information about nationals applying for United States
visas. §2(a). EO–2 directs the Secretary to report his
findings to the President within 20 days of the order’s
“effective date,” after which time those nations identified
as deficient will be given 50 days to alter their practices.
§§2(b), (d)–(e).
Second, EO–2 directs that entry of nationals from six of
the seven countries designated in EO–1—Iran, Libya,
Somalia, Sudan, Syria, and Yemen—be “suspended for 90
days from the effective date” of the order. §2(c). EO–2
explains that this pause is necessary to ensure that dan-
gerous individuals do not enter the United States while
the Executive is working to establish “adequate standards
. . . to prevent infiltration by foreign terrorists”; in addi-
tion, suspending entry will “temporarily reduce investiga-
tive burdens on agencies” during the Secretary’s 20-day
review. Ibid. A separate section provides for case-by-case
waivers of the entry bar. §3(c).
Third, EO–2 suspends “decisions on applications for
refugee status” and “travel of refugees into the United
States under the USRAP” for 120 days following its effec-
tive date. §6(a). During that period, the Secretary of
State is instructed to review the adequacy of USRAP
application and adjudication procedures and implement
4 TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE
PROJECT
Per Curiam
whatever additional procedures are necessary “to ensure
that individuals seeking admission as refugees do not pose
a threat” to national security. Ibid.
Fourth, citing the President’s determination that “the
entry of more than 50,000 refugees in fiscal year 2017
would be detrimental to the interests of the United
States,” EO–2 “suspend[s] any entries in excess of that
number” for this fiscal year. §6(b).
Finally, §14 of EO–2 establishes the order’s effective
date: March 16, 2017.
B
Respondents in these cases filed separate lawsuits
challenging EO–2. As relevant, they argued that the order
violates the Establishment Clause of the First Amend-
ment because it was motivated not by concerns pertaining
to national security, but by animus toward Islam. They
further argued that EO–2 does not comply with certain
provisions in the Immigration and Nationality Act (INA),
66 Stat. 187, as amended.
In No. 16–1436, a Federal District Court concluded that
respondents were likely to succeed on their Establishment
Clause claim with respect to §2(c) of EO–2—the provision
temporarily suspending entry from six countries—and
entered a nationwide preliminary injunction barring the
Government from enforcing §2(c) against any foreign
national seeking entry to the United States. International
Refugee Assistance Project v. Trump, ___ F. Supp. 3d ___,
2017 WL 1018235 (D Md., Mar. 16, 2017) (IRAP). The
District Court in No. 16–1540—likewise relying on the
Establishment Clause—entered a broader preliminary
injunction: The court enjoined nationwide enforcement of
all of §§2 and 6. Hawaii v. Trump, ___ F. Supp. 3d ___,
2017 WL 1167383 (D Haw., Mar. 29, 2017) (entering
preliminary injunction); ___ F. Supp. 3d ___, 2017 WL
1011673 (D Haw., Mar. 15, 2017) (entering temporary
Cite as: 582 U. S. ____ (2017) 5
Per Curiam
restraining order). In addition to the §2(c) suspension of
entry, this injunction covered the §6(a) suspension of
refugee admissions, the §6(b) reduction in the refugee cap,
and the provisions in §§2 and 6 pertaining only to internal
executive review.
These orders, entered before EO–2 went into effect,
prevented the Government from initiating enforcement of
the challenged provisions. The Government filed appeals
in both cases.
The Court of Appeals for the Fourth Circuit ruled first.
On May 25, over three dissenting votes, the en banc court
issued a decision in IRAP that largely upheld the order
enjoining enforcement of §2(c). 857 F.3d 554. The major-
ity determined that respondent John Doe #1, a lawful
permanent resident whose Iranian wife is seeking entry to
the United States, was likely to succeed on the merits of
his Establishment Clause claim. The majority concluded
that the primary purpose of §2(c) was religious, in viola-
tion of the First Amendment: A reasonable observer famil-
iar with all the circumstances—including the predomi-
nantly Muslim character of the designated countries and
statements made by President Trump during his Presi-
dential campaign—would conclude that §2(c) was moti-
vated principally by a desire to exclude Muslims from the
United States, not by considerations relating to national
security. Having reached this conclusion, the court upheld
the preliminary injunction prohibiting enforcement of
§2(c) against any foreign national seeking to enter this
country.
On June 1, the Government filed a petition for certiorari
seeking review of the Fourth Circuit’s decision. It also
filed applications seeking stays of both injunctions, includ-
ing the Hawaii injunction still pending before the Ninth
Circuit. In addition, the Government requested that this
Court expedite the certiorari stage briefing. We accordingly
directed respondents to file responses to the stay appli-
6 TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE
PROJECT
Per Curiam
cations by June 12 and respondents in IRAP to file a brief
in opposition to the Government’s petition for certiorari by
the same day.
Respondents’ June 12 filings injected a new issue into
the cases. In IRAP, respondents argued that the suspen-
sion of entry in §2(c) would expire on June 14. Section
2(c), they reasoned, directs that entry “be suspended for 90
days from the effective date of ” EO–2. The “effective date”
of EO–2 was March 16. §14. Although courts had en-
joined portions of EO–2, they had not altered its effective
date, nor so much as mentioned §14. Thus, even though it
had never been enforced, the entry suspension would
expire 90 days from March 16: June 14. At that time, the
dispute over §2(c) would become moot. Brief in Opposition
13–14.
On the same day respondents filed, the Ninth Circuit
ruled in Hawaii. ___ F. 3d ___, 2017 WL 2529640 (June
12, 2017) (per curiam). A unanimous panel held in favor
of respondents the State of Hawaii and Dr. Ismail Elshikh,
an American citizen and imam whose Syrian mother-in-
law is seeking entry to this country. Rather than rely on
the constitutional grounds supporting the District Court’s
decision, the court held that portions of EO–2 likely ex-
ceeded the President’s authority under the INA. On that
basis it upheld the injunction as to the §2(c) entry suspen-
sion, the §6(a) suspension of refugee admissions, and the
§6(b) refugee cap. The Ninth Circuit, like the Fourth
Circuit, concluded that the injunction should bar enforce-
ment of these provisions across the board, because they
would violate the INA “in all applications.” Id., at *28.
The court did, however, narrow the injunction so that it
would not bar the Government from undertaking the
internal executive reviews directed by EO–2.
We granted the parties’ requests for supplemental brief-
ing addressed to the decision of the Ninth Circuit. Before
those briefs were filed, however, the ground shifted again.
Cite as: 582 U. S. ____ (2017) 7
Per Curiam
On June 14, evidently in response to the argument that
§2(c) was about to expire, President Trump issued a mem-
orandum to Executive Branch officials. The memorandum
declared the effective date of each enjoined provision of
EO–2 to be the date on which the injunctions in these
cases “are lifted or stayed with respect to that provision.”
Presidential Memorandum for the Secretary of State, the
Attorney General, the Secretary of Homeland Security,
and the Director of National Intelligence (June 14, 2017).
The memorandum further provided that, to the extent
necessary, it “should be construed to amend the Executive
Order.” Ibid. The Government takes the view that, if any
mootness problem existed previously, the President’s
memorandum has cured it.
The parties have since completed briefing, with the
Government requesting that we construe its supplemental
brief in Hawaii as a petition for certiorari. There is no
objection from respondents, and we do so. Both petitions
for certiorari and both stay applications are accordingly
ripe for consideration.
II
The Government seeks review on several issues. In
IRAP, the Government argues that respondent Doe lacks
standing to challenge §2(c).* The Government also con-
tends that Doe’s Establishment Clause claim fails on the
merits. In its view, the Fourth Circuit should not have
asked whether §2(c) has a primarily religious purpose.
The court instead should have upheld EO–2 because it
rests on the “facially legitimate and bona fide” justification
of protecting national security. Kleindienst v. Mandel, 408
——————
* On June 24, 2017, this Court received a letter from counsel for Doe
advising that Doe’s wife received an immigrant visa on or about June
22, 2017. The parties may address the significance of that development
at the merits stage. It does not affect our analysis of the stay issues in
these cases.
8 TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE
PROJECT
Per Curiam
U. S. 753, 770 (1972). In addition, the Fourth Circuit
erred by focusing on the President’s campaign-trail com-
ments to conclude that §2(c)—religiously neutral on its
face—nonetheless has a principally religious purpose. At
the very least, the Government argues, the injunction is
too broad.
In Hawaii, the Government likewise argues that re-
spondents Hawaii and Dr. Elshikh lack standing and that
(at a minimum) the injunction should be narrowed. The
Government’s principal merits contention pertains to a
statutory provision authorizing the President to “suspend
the entry of all aliens or any class of aliens” to this country
“[w]henever [he] finds that the entry of any aliens or of
any class of aliens . . . would be detrimental to the inter-
ests of the United States.” 8 U.S. C. §1182(f ). The Ninth
Circuit held that “[t]here is no sufficient finding in [EO–2]
that the entry of the excluded classes would be detri-
mental to the interests of the United States.” Hawaii,
2017 WL 2529640, at *14. This, the Government argues,
constitutes impermissible judicial second-guessing of the
President’s judgment on a matter of national security.
In addition to seeking certiorari, the Government asks
the Court to stay the injunctions entered below, thereby
permitting the enjoined provisions to take effect. Accord-
ing to the Government, it is likely to suffer irreparable
harm unless a stay issues. Focusing mostly on §2(c), and
pointing to the descriptions of conditions in the six desig-
nated nations, the Government argues that a 90-day
pause on entry is necessary to prevent potentially danger-
ous individuals from entering the United States while the
Executive reviews the adequacy of information provided
by foreign governments in connection with visa adjudica-
tions. Additionally, the Government asserts, the tempo-
rary bar is needed to reduce the Executive’s investigative
burdens while this review proceeds.
Cite as: 582 U. S. ____ (2017) 9
Per Curiam
A
To begin, we grant both of the Government’s petitions
for certiorari and consolidate the cases for argument. The
Clerk is directed to set a briefing schedule that will permit
the cases to be heard during the first session of October
Term 2017. (The Government has not requested that we
expedite consideration of the merits to a greater extent.)
In addition to the issues identified in the petitions, the
parties are directed to address the following question:
“Whether the challenges to §2(c) became moot on June 14,
2017.”
B
We now turn to the preliminary injunctions barring
enforcement of the §2(c) entry suspension. We grant the
Government’s applications to stay the injunctions, to the
extent the injunctions prevent enforcement of §2(c) with
respect to foreign nationals who lack any bona fide rela-
tionship with a person or entity in the United States. We
leave the injunctions entered by the lower courts in place
with respect to respondents and those similarly situated,
as specified in this opinion. See infra, at 11–12.
Crafting a preliminary injunction is an exercise of dis-
cretion and judgment, often dependent as much on the
equities of a given case as the substance of the legal issues
it presents. See Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20, 24 (2008); 11A C. Wright, A.
Miller, & M. Kane, Federal Practice and Procedure §2948
(3d ed. 2013). The purpose of such interim equitable relief
is not to conclusively determine the rights of the parties,
University of Tex. v. Camenisch, 451 U.S. 390, 395 (1981),
but to balance the equities as the litigation moves forward.
In awarding a preliminary injunction a court must also
“conside[r] . . . the overall public interest.” Winter, supra,
at 26. In the course of doing so, a court “need not grant
the total relief sought by the applicant but may mold its
10 TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE
PROJECT
Per Curiam
decree to meet the exigencies of the particular case.”
Wright, supra, §2947, at 115.
Here, of course, we are not asked to grant a preliminary
injunction, but to stay one. In assessing the lower courts’
exercise of equitable discretion, we bring to bear an equi-
table judgment of our own. Nken v. Holder, 556 U.S. 418,
433 (2009). Before issuing a stay, “[i]t is ultimately neces-
sary . . . to balance the equities—to explore the relative
harms to applicant and respondent, as well as the inter-
ests of the public at large.” Barnes v. E-Systems, Inc.
Group Hospital Medical & Surgical Ins. Plan, 501 U.S.
1301, 1305 (1991) (Scalia, J., in chambers) (internal quota-
tion marks omitted). This Court may, in its discretion,
tailor a stay so that it operates with respect to only “some
portion of the proceeding.” Nken, supra, at 428.
The courts below took account of the equities in fashion-
ing interim relief, focusing specifically on the concrete
burdens that would fall on Doe, Dr. Elshikh, and Hawaii if
§2(c) were enforced. They reasoned that §2(c) would “di-
rectly affec[t]” Doe and Dr. Elshikh by delaying entry of
their family members to the United States. IRAP, 857
F.3d, at 585, n. 11; see Hawaii, 2017 WL 2529640, at *7–
*8, *24. The Ninth Circuit concluded that §2(c) would
harm the State by preventing students from the desig-
nated nations who had been admitted to the University of
Hawaii from entering this country. These hardships, the
courts reasoned, were sufficiently weighty and immediate
to outweigh the Government’s interest in enforcing §2(c).
Having adopted this view of the equities, the courts ap-
proved injunctions that covered not just respondents, but
parties similarly situated to them—that is, people or
entities in the United States who have relationships with
foreign nationals abroad, and whose rights might be af-
fected if those foreign nationals were excluded. See Man-
del, 408 U.S., at 763–765 (permitting American plaintiffs
to challenge the exclusion of a foreign national on the
Cite as: 582 U. S. ____ (2017) 11
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ground that the exclusion violated their own First
Amendment rights).
But the injunctions reach much further than that: They
also bar enforcement of §2(c) against foreign nationals
abroad who have no connection to the United States at all.
The equities relied on by the lower courts do not balance
the same way in that context. Denying entry to such a
foreign national does not burden any American party by
reason of that party’s relationship with the foreign national.
And the courts below did not conclude that exclusion
in such circumstances would impose any legally relevant
hardship on the foreign national himself. See id., at 762
(“[A]n unadmitted and nonresident alien . . . ha[s] no
constitutional right of entry to this country”). So whatever
burdens may result from enforcement of §2(c) against a
foreign national who lacks any connection to this country,
they are, at a minimum, a good deal less concrete than the
hardships identified by the courts below.
At the same time, the Government’s interest in enforc-
ing §2(c), and the Executive’s authority to do so, are un-
doubtedly at their peak when there is no tie between the
foreign national and the United States. Indeed, EO–2
itself distinguishes between foreign nationals who have
some connection to this country, and foreign nationals who
do not, by establishing a case-by-case waiver system pri-
marily for the benefit of individuals in the former cate-
gory. See, e.g., §§3(c)(i)–(vi). The interest in preserving
national security is “an urgent objective of the highest
order.” Holder v. Humanitarian Law Project, 561 U.S. 1,
28 (2010). To prevent the Government from pursuing that
objective by enforcing §2(c) against foreign nationals
unconnected to the United States would appreciably injure
its interests, without alleviating obvious hardship to
anyone else.
We accordingly grant the Government’s stay applica-
tions in part and narrow the scope of the injunctions as to
12 TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE
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§2(c). The injunctions remain in place only with respect to
parties similarly situated to Doe, Dr. Elshikh, and Hawaii.
In practical terms, this means that §2(c) may not be en-
forced against foreign nationals who have a credible claim
of a bona fide relationship with a person or entity in the
United States. All other foreign nationals are subject to
the provisions of EO–2.
The facts of these cases illustrate the sort of relationship
that qualifies. For individuals, a close familial relation-
ship is required. A foreign national who wishes to enter
the United States to live with or visit a family member,
like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has
such a relationship. As for entities, the relationship must
be formal, documented, and formed in the ordinary course,
rather than for the purpose of evading EO–2. The stu-
dents from the designated countries who have been admit-
ted to the University of Hawaii have such a relationship
with an American entity. So too would a worker who
accepted an offer of employment from an American com-
pany or a lecturer invited to address an American audi-
ence. Not so someone who enters into a relationship sim-
ply to avoid §2(c): For example, a nonprofit group devoted to
immigration issues may not contact foreign nationals from
the designated countries, add them to client lists, and then
secure their entry by claiming injury from their exclusion.
In light of the June 12 decision of the Ninth Circuit
vacating the injunction as to §2(a), the executive review
directed by that subsection may proceed promptly, if it is
not already underway. EO–2 instructs the Secretary of
Homeland Security to complete this review within 20
days, after which time foreign governments will be given
50 days further to bring their practices into line with the
Secretary’s directives. §§2(a)–(b), (d). Given the Govern-
ment’s representations in this litigation concerning the
resources required to complete the 20-day review, we fully
expect that the relief we grant today will permit the Exec-
Cite as: 582 U. S. ____ (2017) 13
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utive to conclude its internal work and provide adequate
notice to foreign governments within the 90-day life of
§2(c).
C
The Hawaii injunction extends beyond §2(c) to bar
enforcement of the §6(a) suspension of refugee admissions
and the §6(b) refugee cap. In our view, the equitable
balance struck above applies in this context as well. An
American individual or entity that has a bona fide rela-
tionship with a particular person seeking to enter the
country as a refugee can legitimately claim concrete hard-
ship if that person is excluded. As to these individuals
and entities, we do not disturb the injunction. But when it
comes to refugees who lack any such connection to the
United States, for the reasons we have set out, the balance
tips in favor of the Government’s compelling need to pro-
vide for the Nation’s security. See supra, at 9–11; Haig v.
Agee, 453 U.S. 280, 307 (1981).
The Government’s application to stay the injunction
with respect to §§6(a) and (b) is accordingly granted in
part. Section 6(a) may not be enforced against an individ-
ual seeking admission as a refugee who can credibly claim
a bona fide relationship with a person or entity in the
United States. Nor may §6(b); that is, such a person may
not be excluded pursuant to §6(b), even if the 50,000-
person cap has been reached or exceeded. As applied to all
other individuals, the provisions may take effect.
* * *
Accordingly, the petitions for certiorari are granted, and
the stay applications are granted in part.
It is so ordered.
Cite as: 582 U. S. ____ (2017) 1
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 16–1436 (16A1190) and 16–1540 (16A1191)
_________________
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL.
No. 16–1436 (16A1190) v.
INTERNATIONAL REFUGEE ASSISTANCE
PROJECT, ET AL.
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
DONALD J. TRUMP, PRESIDENT OF THE UNITED
STATES, ET AL.
No. 16–1540 (16A1191) v.
HAWAII, ET AL.
ON APPLICATION FOR STAY AND PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
[June 26, 2017]
JUSTICE THOMAS, with whom JUSTICE ALITO and
JUSTICE GORSUCH join, concurring in part and dissenting
in part.
I agree with the Court that the preliminary injunctions
entered in these cases should be stayed, although I would
stay them in full. The decision whether to stay the injunc-
tions is committed to our discretion, ante, at 9–10, but our
discretion must be “guided by sound legal principles,”
Nken v. Holder, 556 U.S. 418, 434 (2009) (internal quota-
tion marks omitted). The two “most critical” factors we
must consider in deciding whether to grant a stay are
“(1) whether the stay applicant has made a strong showing
that [it] is likely to succeed on the merits” and
“(2) whether the applicant will be irreparably injured
2 TRUMP v. INTERNATIONAL REFUGEE ASSISTANCE
PROJECT
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J.
in part
absent a stay.” Ibid. (internal quotation marks omitted).
Where a party seeks a stay pending certiorari, as here, the
applicant satisfies the first factor only if it can show both
“a reasonable probability that certiorari will be granted”
and “a significant possibility that the judgment below will
be reversed.” Barnes v. E-Systems, Inc. Group Hospital
Medical & Surgical Ins. Plan, 501 U.S. 1301, 1302 (1991)
(Scalia, J., in chambers). When we determine that those
critical factors are satisfied, we must “balance the equi-
ties” by “explor[ing] the relative harms to applicant and
respondent, as well as the interests of the public at large.”
Id., at 1304–1305 (internal quotation marks omitted); cf.
Nken, supra, at 435 (noting that the factors of “assessing
the harm to the opposing party and weighing the public
interest” “merge when the Government is the opposing
party”).
The Government has satisfied the standard for issuing a
stay pending certiorari. We have, of course, decided to
grant certiorari. See ante, at 8–9. And I agree with the
Court’s implicit conclusion that the Government has made
a strong showing that it is likely to succeed on the mer-
its—that is, that the judgments below will be reversed.
The Government has also established that failure to stay
the injunctions will cause irreparable harm by interfering
with its “compelling need to provide for the Nation’s secu-
rity.” Ante, at 13. Finally, weighing the Government’s
interest in preserving national security against the hard-
ships caused to respondents by temporary denials of entry
into the country, the balance of the equities favors the
Government. I would thus grant the Government’s appli-
cations for a stay in their entirety.
Reasonable minds may disagree on where the balance of
equities lies as between the Government and respondents
in these cases. It would have been reasonable, perhaps,
for the Court to have left the injunctions in place only as
to respondents themselves. But the Court takes the addi-
Cite as: 582 U. S. ____ (2017) 3
THOMAS, J., concurring
Opinionin
ofpart and,dissenting
THOMAS J. in part
tional step of keeping the injunctions in place with regard
to an unidentified, unnamed group of foreign nationals
abroad. No class has been certified, and neither party
asks for the scope of relief that the Court today provides.
“[I]njunctive relief should be no more burdensome to the
defendant than necessary to provide complete relief to the
plaintiffs” in the case, Califano v. Yamasaki, 442 U.S.
682, 702 (1979) (emphasis added), because a court’s role is
“to provide relief ” only “to claimants . . . who have suf-
fered, or will imminently suffer, actual harm.” Lewis v.
Casey, 518 U.S. 343, 349 (1996). In contrast, it is the role
of the “political branches” to “shape the institutions of
government in such fashion as to comply with the laws
and the Constitution.” Ibid.
Moreover, I fear that the Court’s remedy will prove
unworkable. Today’s compromise will burden executive
officials with the task of deciding—on peril of contempt—
whether individuals from the six affected nations who
wish to enter the United States have a sufficient connec-
tion to a person or entity in this country. See ante, at 11–
12. The compromise also will invite a flood of litigation
until this case is finally resolved on the merits, as parties
and courts struggle to determine what exactly constitutes
a “bona fide relationship,” who precisely has a “credible
claim” to that relationship, and whether the claimed
relationship was formed “simply to avoid §2(c)” of Execu-
tive Order No. 13780, ante, at 11, 12. And litigation of the
factual and legal issues that are likely to arise will pre-
sumably be directed to the two District Courts whose
initial orders in these cases this Court has now—
unanimously—found sufficiently questionable to be stayed
as to the vast majority of the people potentially affected.