In a May 27 blog post, I detailed the affirmance (in part) by the Court of Appeals for the Fourth Circuit of a district court judge's injunction barring enforcement of section 2(c) of Executive Order 13,780, "Protecting the Nation from Foreign Terrorist Entry Into the United States" (EO-2). On Monday, June 12, the Ninth Circuit took its chop at that order, reviewing a decision by the United States District Court for the District of Hawaii, which had entered a temporary restraining order (TRO) prohibiting enforcement of sections 2 and 6 of EO-2 nation-wide.
As I noted in that May 27 post:
On January 27, 2017, President Trump issued Executive Order 13,769 (EO-1), which was also captioned "Protecting the Nation from Foreign Terrorist Entry into the United States". On February 3, 2017, a federal district court judge in the Western District of Washington issued a [TRO] that prevented the government from enforcing sections 3(c), 5(a), 5(b), 5(c), and (in part) 5(e) of that executive order. On February 9, 2017, the Ninth Circuit in Washington v. Trump denied the government's motion for an emergency stay of that TRO. The Ninth Circuit denied that motion on due process grounds, holding:
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual's ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
Significantly, the court stated that:
[E]ven if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order. ... The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.
On March 6, 2017, in apparent response to this invitation from the Ninth Circuit, the president issued the new executive order, EO-2.
Section 2 of EO-2, captioned "Temporary Suspension of Entry for Nationals of Countries of Particular Concern During Review Period," states:
(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall conduct a worldwide review to identify whether, and if so what, additional information will be needed from each foreign country to adjudicate an application by a national of that country for a visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual is not a security or public-safety threat. The Secretary of Homeland Security may conclude that certain information is needed from particular countries even if it is not needed from every country.
(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the worldwide review described in subsection (a) of this section, including the Secretary of Homeland Security's determination of the information needed from each country for adjudications and a list of countries that do not provide adequate information, within 20 days of the effective date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State, the Attorney General, and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals, to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and in light of the national security concerns referenced in section 1 of this order, I hereby proclaim, pursuant to sections 212(f) and 215(a) of the INA, 8 U.S.C. 1182(f) and 1185(a), that the unrestricted entry into the United States of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen would be detrimental to the interests of the United States. I therefore direct that the entry into the United States of nationals of those six countries be suspended for 90 days from the effective date of this order, subject to the limitations, waivers, and exceptions set forth in sections 3 and 12 of this order.
(d) Upon submission of the report described in subsection (b) of this section regarding the information needed from each country for adjudications, the Secretary of State shall request that all foreign governments that do not supply such information regarding their nationals begin providing it within 50 days of notification.
(e) After the period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, shall submit to the President a list of countries recommended for inclusion in a Presidential proclamation that would prohibit the entry of appropriate categories of foreign nationals of countries that have not provided the information requested until they do so or until the Secretary of Homeland Security certifies that the country has an adequate plan to do so, or has adequately shared information through other means. The Secretary of State, the Attorney General, or the Secretary of Homeland Security may also submit to the President the names of additional countries for which any of them recommends other lawful restrictions or limitations deemed necessary for the security or welfare of the United States.
(f) At any point after the submission of the list described in subsection (e) of this section, the Secretary of Homeland Security, in consultation with the Secretary of State and the Attorney General, may submit to the President the names of any additional countries recommended for similar treatment, as well as the names of any countries that they recommend should be removed from the scope of a proclamation described in subsection (e) of this section.
(g) The Secretary of State and the Secretary of Homeland Security shall submit to the President a joint report on the progress in implementing this order within 60 days of the effective date of this order, a second report within 90 days of the effective date of this order, a third report within 120 days of the effective date of this order, and a fourth report within 150 days of the effective date of this order.
Section 6 of EO-2, captioned "Realignment of the U.S. Refugee Admissions Program [USRAP] for Fiscal Year 2017", states:
(a) The Secretary of State shall suspend travel of refugees into the United States under the USRAP, and the Secretary of Homeland Security shall suspend decisions on applications for refugee status, for 120 days after the effective date of this order, subject to waivers pursuant to subsection (c) of this section. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication processes to determine what additional procedures should be used to ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. The suspension described in this subsection shall not apply to refugee applicants who, before the effective date of this order, have been formally scheduled for transit by the Department of State. The Secretary of State shall resume travel of refugees into the United States under the USRAP 120 days after the effective date of this order, and the Secretary of Homeland Security shall resume making decisions on applications for refugee status only for stateless persons and nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that the additional procedures implemented pursuant to this subsection are adequate to ensure the security and welfare of the United States.
(b) Pursuant to section 212(f) of the INA, I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any entries in excess of that number until such time as I determine that additional entries would be in the national interest.
(c) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretary of State and the Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and does not pose a threat to the security or welfare of the United States, including in circumstances such as the following: the individual's entry would enable the United States to conform its conduct to a preexisting international agreement or arrangement, or the denial of entry would cause undue hardship.
(d) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of State shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Section 212(f) of the Immigration and Nationality Act (INA), referenced above, states, in pertinent 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.
I discussed the district court decision in question at length in my May 17 post. In its decision, the Ninth Circuit found that the district court judge's injunction of the president himself was in error, concluding that the injuries asserted by the plaintiffs there could "be redressed fully by injunctive relief against the remaining Defendants." It affirmed the district court's "injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending USRAP for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017," but vacated "the portions of the injunction that prevent the Government from conducting internal reviews, as otherwise directed in Sections 2 and 6."
In making its decision, the Ninth Circuit held that the plaintiffs, the State of Hawaii and Dr. Ismail Elshikh ("an American citizen of Egyptian descent"), had standing to challenge EO-2. Dr. Elshikh had standing, according to the court, because section 2 of EO-2 "is a barrier to reunification with his mother-in-law," for whom his wife had filed an I-130, Petition for Alien Relative, "in light of the stalled visa process." With respect to the State of Hawaii, the court found:
The State has resettled three refugees this fiscal year, and at least twenty since 2010. EO2 would prevent the State from assisting with refugee resettlement and thus prevent it from effectuating its policies aimed at assisting refugee and immigrant populations. The State's requested injunctive relief would permit it to assist in the resettlement of refugees, at least through fiscal year 2017. As the State exercises "sovereign power over individuals and entities within the relevant jurisdiction" in administering [the Office of Community Services ("OCS"), which is directed to "[a]ssist and coordinate the efforts of all public and private agencies providing services which affect the disadvantaged, refugees, and immigrants"] we conclude, at this preliminary stage, that the State has made sufficient allegations to support standing to challenge the refugee-related provisions [in section 6] of EO2.
Unlike the district court, which determined that the plaintiffs had standing to pursue a claim under the Establishment Clause of the first amendment of the constitution, the circuit court held that the plaintiffs had standing to challenge EO-2 based on their claim that in issuing EO-2, the president exceeded his authority under the Immigration and Nationality Act (INA) and that EO-2 conflicts with provisions of the INA. Explaining this claim, the circuit court stated: "This claim looks at whether the President appropriately exercised his authority under [section 212(f) of the INA] by satisfying its precondition, and whether, and to what extent, his authority under [section 212(f) of the INA] is cabined by other provisions of the INA."
With respect to this claim, the circuit court held that section 212(f) of the INA:
[R]equires that the President find that the entry of a class of aliens into the United States would be detrimental to the interests of the United States. This section requires that the President's findings support the conclusion that entry of all nationals from the six designated countries, all refugees, and refugees in excess of 50,000 would be harmful to the national interest. (Emphasis added.)
The Ninth Circuit concluded that there was "no sufficient finding in EO2 that the entry of the excluded classes would be detrimental to the interests of the United States."
 To temporarily reduce investigative burdens on relevant agencies during the review period [of the United States' vetting procedures],  to ensure the proper review and maximum utilization of available resources for the screening and vetting of foreign nationals,  to ensure that adequate standards are established to prevent infiltration by foreign terrorists, and  in light of the national security concerns referenced in section 1.
Interestingly, the circuit court, which asserts that the first three reasons above "relate to preservation of government resources to review existing procedures and ensure adequate vetting standards", rejects those reasons because:
There is no finding that present vetting standards are inadequate, and no finding that absent the improved vetting procedures there likely will be harm to our national interests. These identified reasons do not support the conclusion that the entry of nationals from the six designated countries would be harmful to our national interests.
Significantly, however, section 1(a) of EO-2 plainly states:
The screening and vetting protocols and procedures associated with the visa-issuance process and the United States Refugee Admissions Program (USRAP) play a crucial role in detecting foreign nationals who may commit, aid, or support acts of terrorism and in preventing those individuals from entering the United States. It is therefore the policy of the United States to improve the screening and vetting protocols and procedures associated with the visa-issuance process and the USRAP.
And section 1(d) plainly states:
Nationals from the countries previously identified under section 217(a)(12) of the INA [the six countries listed in section 2(c) of EO-2 plus Iraq] warrant additional scrutiny in connection with our immigration policies because the conditions in these countries present heightened threats. Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States. Finally, once foreign nationals from these countries are admitted to the United States, it is often difficult to remove them, because many of these countries typically delay issuing, or refuse to issue, travel documents. (Emphasis added.)
It is not clear from the circuit court's decision what further finding there could be that the current vetting process is inadequate, but none is apparent.
The circuit court next rejects "the fourth reason — national security concerns." In so doing, the circuit court takes note of section 1(d) of EO-2, above, but contends that "EO-2 makes no finding that "nationality alone renders entry of this broad class of individuals a heightened security risk to the United States" and does not "provide any link between an individual's nationality and their propensity to commit terrorism or their inherent dangerousness." The circuit court admits that EO-2 "explains that country conditions in the six designated countries lessen their governments' ability to share information about nationals seeking to travel to our country," but asserts that EO-2 "specifically avoids making any finding that the current screening processes are inadequate."
Again, in making this finding, the circuit court is seemingly oblivious to the fact that read as a whole, the entire reason for EO-2 is that "the current screening processes are inadequate," at least as they relate to the six countries listed in section 2(c).
To the degree that the circuit court wants a "finding" to this effect that it can review, it is not entirely clear how it would review it. The court notes that:
The same day EO2 issued, Attorney General Jefferson B. Sessions III and Secretary of Homeland Security John F. Kelly submitted a letter to the President recommending that he "direct a temporary pause in entry" from countries that are "unable or unwilling to provide the United States with adequate information about their nationals" or are designated as "state sponsors of terrorism."
The circuit court makes no finding that this recommendation was in bad faith. The attorney general and the secretary of Homeland Security presumably have the entire resources of their departments behind their analyses, and logically would have access to our nation's most sensitive material in making that recommendation.
The court contrasts this with "[t]wo versions of a report from the Department of Homeland Security ("DHS")" that "surfaced after [EO-1] issued":
First, a draft report from DHS, prepared about one month after EO1 issued and two weeks prior to EO2's issuance, concluded that citizenship "is unlikely to be a reliable indicator of potential terrorist activity" and that citizens of countries affected by EO1 are "[r]arely [i]mplicated in U.S.-[b]ased [t]errorism." Specifically, the DHS report determined that since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries—with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Of the six countries included in EO2, only Somalia was identified as being among the "top" countries-of-origin for the terrorists analyzed in the report. During the time period covered in the report, three offenders were from Somalia; one was from Iran, Sudan, and Yemen each; and none was from Syria or Libya. The final version of the report, issued five days prior to EO2, concluded "that most foreign-born, [U.S.]-based violent extremists likely radicalized several years after their entry to the United States, [thus] limiting the ability of screening and vetting officials to prevent their entry because of national security concerns."
The Ninth Circuit does not provide any further descriptions of those "reports", in particular the issuing authority (aside from "DHS"), or from where they "surfaced". Moreover, the conclusion that "the ability of screening and vetting officials to prevent [the] entry" of "foreign-born" extremists is "limit[ed]" does not mean that the United States should not try. To paraphrase the IRA after attempting to kill British Prime Minister Margaret Thatcher in 1984, terrorists "only have to be lucky once — [society] will have to be lucky always." This is especially true given the fact that the suspension of entry for nationals of the six countries in section 2(c) of EO-2 is limited in duration to 90 days, lessening any burden on those affected.
Similarly, the Ninth Circuit reviewed the suspension of travel by refugees into the United States under USRAP and the suspension of decisions on applications for refugee status for 120 days in section 6(a) of EO-2, and concluded that EO-2 "does not reveal any threat or harm to warrant suspension of USRAP for 120 days and does not support the conclusion that the entry of refugees in the interim time period would be harmful."
Notably, in reaching this conclusion, the Ninth Circuit admits that section 1(h) of EO-2 cites the case of "two Iraqi nationals admitted to the United States as refugees in 2009 [who] were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses," and "explains that there are 'more than 300 persons who entered the United States as refugees [who] are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation.'" I note also that in describing EO-1, section 1(b)(iii) of EO-2 states: "Executive Order 13769 also suspended the USRAP for 120 days. Terrorist groups have sought to infiltrate several nations through refugee programs."
Given these facts, it cannot be gainsaid that the entry of refugees into the United States under the USRAP, absent assurances that the screening process for those refugees are sufficient to "ensure that individuals seeking admission as refugees do not pose a threat to the security and welfare of the United States" would not be "detrimental to the interests of the United States", as section 212(f) of the INA requires.
The circuit court takes a similar tack with respect to section 6(b) of EO-2, which as the court states "restricts entry of refugees to no more than 50,000 in the 2017 fiscal year because entry in excess of 50,000 'would be detrimental to the interests of the United States.'" Noting that "President Obama previously determined that the admission of 110,000 refugees to the United States during fiscal year 2017 was justified by humanitarian concerns or otherwise in the national interest," the circuit court contends that EO-2 "makes no findings to justify barring entry in excess of 50,000 as detrimental to the interests of the United States."
Section 212(f) of the INA does not specifically state how that provision is to be applied, but in this instance the circuit court apparently is looking for evidence proving that entry of more than 50,000 refugees "would be detrimental to the interests of the United States," despite the fact that the president stated dispositively that it would be. Again, the president would logically have access to the full scope of intelligence held by the U.S. government, and there is no finding in the circuit court's order that he reached this conclusion in bad faith. Nor is it clear how the judges of the circuit court would be in a position to review that determination if it were made.
The circuit court also finds that this limitation is barred by section 207(a)(2) of the INA, which states:
[T]he number of refugees who may be admitted under this section in any fiscal year after fiscal year 1982 shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation, is justified by humanitarian concerns or is otherwise in the national interest.
As "President Obama determined that the admission of 110,000 refugees to the United States during fiscal year 2017 was justified by humanitarian concerns or otherwise in the national interest," the circuit court held, the statute prevents the president from reducing that cap in the middle of the fiscal year, as section 6(b) of EO-2 attempts to so.
In making this finding, the circuit court expressly rejects the government's argument that section 207 of the INA "only refers to a ceiling —not the floor — for the number of refugees who may be admitted, and that [sections 212(f) and 215(a)(1) of the INA] permit the President to lower the number of refugees permitted to enter." Taken as a whole, the structure of section 207 of the INA, and logic, prove the truth of the government's point.
Section 207(a)(1) of the INA states:
Except as provided in subsection (b), the number of refugees who may be admitted under this section in fiscal year 1980, 1981, or 1982, may not exceed fifty thousand unless the President determines, before the beginning of the fiscal year and after appropriate consultation (as defined in subsection (e)), that admission of a specific number of refugees in excess of such number is justified by humanitarian concerns or is otherwise in the national interest. (Emphasis added.)
While the impact of a statute that was last applicable 35 years ago may not be obvious, what is obvious from this text is that Congress, in adding section 207 to the INA in the Refugee Act of 1980, intended to limit the number of aliens admitted under that status. Similarly, section 207(c)(1) of the INA describes the number of refugees in sections 207(a) and (b) as "numerical limitations," indicating, as the government argues, that "the number of refugees" in section 207(a)(2) of the INA is a "ceiling ... for the number of refugees who may be admitted."
Further, the structure of the provision itself makes clear that the "number of refugees" is a ceiling: Section 207(a)(2) states that "the number of refugees who may be admitted under this section ... shall be the number as the President determines, before the beginning of the fiscal year and after appropriate consultation. ... " The statute does not state that "the number of refugees who shall be admitted." Under the canons of statutory construction, "shall" is usually mandatory, "may" is usually precatory, and Congress showed in this sentence that it knew how to use the word "shall" if it meant the number to be a requirement.
Finally, logic supports the government's point. Imagine if, on September 30, 2017, (the last day of the government fiscal year), only 109,000 refugees had been admitted. Would the government be forced to find another 1,000 refugees to admit before midnight? Obviously not, but that is the implication of the Ninth Circuit's decision.
The Circuit court also contends that section 2(c) of EO-2 violates the "non-discrimination mandate" in section 202(a)(1)(A) of the INA, which it asserts "cabins the President's authority under" section 212(f) of the INA.
Section 202(a)(1)(A) of the INA states that with specified exceptions "no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth, or place of residence." As Andrew McCarthy has noted, however, the purpose of this provision:
[S]igned by President Johnson . . . in 1965, was to end the racially and ethnically discriminatory "national origins" immigration practice that was skewed in favor of Western Europe. [EO-1], to the contrary, is in no way an effort to affect the racial or ethnic composition of the nation or its incoming immigrants.
The same is true of EO-2, and is especially true given the fact that section 2(c) of EO-2 is limited to a 90-day suspension of entry from nationals of the six countries listed therein, and provides for exceptions and a case-by-case review.
As importantly, however, the circuit court fails to recognize that although section 2(c) of EO-2 expressly suspends the entry of specific nationals, it does so based on non-discriminatory standards. Specifically, section 1(d) of EO-2 makes clear that the six countries identified (and Iraq) "warrant additional scrutiny in connection with our immigration policies because the conditions in these countries presents heightened threats," a fact that circuit court does not appear to contest. Therefore, the distinction among nationals of various countries in section 2(c) of EO-2 is not "discrimination," which would be otherwise impermissible under section 202(a)(1)(A) of the INA, but rather a legitimate exercise of the president's "paramount authority for national security."
After finding that the plaintiffs had "shown a likelihood of success ... as to their arguments that EO2 contravenes the INA by exceeding the President's authority under [section 212(f) of the INA], discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees," the Ninth Circuit turns to the injuries to the respective parties.
In concluding that the plaintiffs were "likely to suffer irreparable harm in the absence of preliminary relief", the circuit court finds: "Plaintiffs identify harms, such as prolonged separation from family members, constraints to recruiting and attracting students and faculty members to the University of Hawaii, decreased tuition revenue, and the State's inability to assist in refugee resettlement." None of these harms, however, appear to be particularly "irreparable", particularly given the limited duration of the suspensions in sections 2(c) and 6(a) of EO-2, and what even the circuit court admits is "a small number of refugees" Hawaii has resettled in the past seven years ("at least 20") and in FY 2017 (three).
The court finds on the other hand that "the Government has not put forth evidence of injuries resulting from the preliminary injunction, or how the screening and vetting procedures in place before [EO-2] was enjoined were inadequate such that the Order should take immediate effect," concluding that "the equities tip" in favor of the plaintiffs.
In making this determination, the circuit court fails to give any effect to any of the statements in EO-1 or EO-2, or to the recommendation of the attorney general or secretary of Homeland Security that the president "'direct a temporary pause in entry' from countries that are 'unable or unwilling to provide the United States with adequate information about their nationals' or are designated as 'state sponsors of terrorism.'" Although the circuit court references this recommendation, it fails to mention the statement in that recommendation that such pause would "immediately diminish the risk we face from application of our current vetting and screening programs from individuals seeking entry into the United States from" those countries, a risk delineated therein. This is plainly in error, and represents a failure by the court to appreciate that risk.
This underscores the fundamental flaw in the circuit court's decision. The court finds that the president failed in EO-2 to make "sufficient findings that justifying that certain classes of aliens would be detrimental to the national interest", which it finds is a precondition to the president acting under section 212(f) of the INA. This finding is belied by the fact that EO-1, EO-2, and the aforementioned recommendation all are amply supported by objective facts. The judges of the circuit court make clear why courts usually defer to the executive branch in national security cases — because judges lack the access to the full range of information available to the president (and the attorney general and the secretary of Homeland Security), and (generally) the background to assess that information properly.