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In the Supreme Court of the United States

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In the Supreme Court of the United States No. 17-965 In the Supreme Court of the United States DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL., PETITIONERS v. STATE OF HAWAII, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE PETITIONERS NOEL J. FRANCISCO Solicitor General Counsel of Record CHAD A. READLER Acting Assistant Attorney General JEFFREY B. WALL EDWIN S. KNEEDLER Deputy Solicitors General HASHIM M. MOOPPAN Deputy Assistant Attorney General JONATHAN C. BOND MICHAEL R. HUSTON Assistants to the Solicitor General SHARON SWINGLE H. THOMAS BYRON III Attorneys Department of Justice Washington, D.C. 20530-0001 [email protected] (202) 514-2217 QUESTIONS PRESENTED The Constitution and Acts of Congress confer on the President broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the Nation’s interest. Exercising that authority after a worldwide review by multiple governmental agencies of whether foreign governments provide adequate infor- mation to enable the United States to sufficiently vet their nationals, the President issued Proclamation No. 9645, 82 Fed. Reg. 45,161 (Sept. 27, 2017). In ac- cordance with the recommendation of the Acting Secre- tary of Homeland Security following the multi-agency review, the Proclamation suspends entry, subject to case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors. The district court issued a prelimi- nary injunction barring enforcement of the Proclama- tion’s entry suspensions worldwide, except as to nation- als of two countries. The court of appeals affirmed, except as to persons without a credible claim of a bona fide relationship with a person or entity in the United States. The courts concluded that the Proclamation violates the Immigration and Nationality Act. The questions presented are: 1. Whether respondents’ challenge to the President’s suspension of entry of aliens abroad is justiciable. 2. Whether the Proclamation is a lawful exercise of the President’s authority to suspend entry of aliens abroad. 3. Whether the Proclamation violates the Establish- ment Clause. 4. Whether the global injunction is impermissibly overbroad. (I) PARTIES TO THE PROCEEDING Petitioners (defendants-appellants below) are Donald J. Trump, in his official capacity as President of the United States; the U.S. Department of Homeland Secu- rity; Kirstjen M. Nielsen, in her official capacity as Sec- retary of Homeland Security; the U.S. Department of State; Rex W. Tillerson, in his official capacity as Sec- retary of State; and the United States of America.* Respondents (plaintiffs-appellees below) are the State of Hawaii, Dr. Ismail Elshikh, John Does 1 and 2, and the Muslim Association of Hawaii, Inc. * Former Acting Secretary of Homeland Security Elaine C. Duke was a defendant-appellant in this case. When Kirstjen M. Nielsen became Secretary of Homeland Security on December 6, 2017, Sec- retary Nielsen was automatically substituted. (II) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Constitutional and statutory provisions involved ...................... 2 Statement ...................................................................................... 2 A. Legal framework ............................................................. 3 B. The Executive Orders and Proclamation ...................... 4 C. Procedural history ......................................................... 11 D. Related litigation ........................................................... 13 Summary of argument ............................................................... 14 Argument: I. Respondents’ challenge to the Proclamation is not justiciable ........................................................................ 17 A. Respondents’ statutory claims are not justiciable ................................................................. 18 1. Congress has not authorized review of respondents’ statutory claims ....................... 18 2. Neither the APA nor principles of equity authorize review of respondents’ statutory claims ................................................................. 22 B. Respondents’ Establishment Clause claim is not justiciable ........................................................... 26 II. The Proclamation is a lawful exercise of the President’s authority to suspend or restrict entry of aliens abroad .............................................................. 30 A. The Proclamation is authorized by 8 U.S.C. 1182(f ), 8 U.S.C. 1185(a)(1), and the Constitution ............................................................. 30 1. The President validly exercised his statutory authority to suspend entry of aliens in the national interest ......................... 31 2. The President’s authority to suspend entry is not subject to the court of appeals’ atextual limitations ........................................... 40 (III) IV Table of Contents—Continued: Page 3. The court of appeals’ narrow view of the President’s constitutional authority is incorrect ............................................................. 47 B. The Proclamation is consistent with 8 U.S.C. 1152(a)(1)(A) ............................................................ 48 1. Section 1152(a)(1)(A) does not conflict with the President’s authority under Sections 1182(f ) and 1185(a)(1) ....................................... 49 2. In the event of a conflict, Section 1152(a)(1)(A) does not restrict the President’s exercise of his authority under Sections 1182(f ) and 1185(a)(1) ............ 55 3. Section 1152(a)(1)(A) cannot justify enjoining the Proclamation .............................. 57 III. The Proclamation does not violate the Establishment Clause ................................................... 58 A. The Proclamation is constitutional under Mandel and Din ...................................................... 58 B. The Proclamation is constitutional under domestic Establishment Clause precedent .......... 64 IV. The global injunction is vastly overbroad ................... 72 Conclusion ................................................................................... 76 Appendix — Constitutional and statutory provisions .......... 1a TABLE OF AUTHORITIES Cases: Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir. 1986), aff ’d by an equally divided Court, 484 U.S. 1 (1987) ....................... 21, 31, 44 Allen v. Wright, 468 U.S. 737 (1984) .............................. 29 Allende v. Shultz, 845 F.2d 1111 (1st Cir. 1988) ............ 44 Arizona v. United States, 567 U.S. 387 (2012) ............... 46 V Cases—Continued: Page Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015) ................................................... 26 Block v. Community Nutrition Inst., 467 U.S. 340 (1984) ..................................................23, 24 Brownell v. Tom We Shung, 352 U.S. 180 (1956) .......... 20 Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103 (1948) ............................................ 39 Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) ........................... 65 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) .....72, 73 Clinton v. City of New York, 524 U.S. 417 (1998) .......... 46 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ....................................................... 45 DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ....................................................... 72 Dalton v. Specter, 511 U.S. 462 (1994) ........................... 24 Demore v. Kim, 538 U.S. 510 (2003) .............................. 59 Department of the Navy v. Egan, 484 U.S. 518 (1988) ....................................................... 39 Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988) ....................................................... 54 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ....... 76 Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1 (2004) ........................................................... 27 Fiallo v. Bell, 430 U.S. 787 (1977) ....................... 18, 21, 59 Franklin v. Massachusetts, 505 U.S. 788 (1992) ........... 23 Galvan v. Press, 347 U.S. 522 (1954) ................................... 46 Grupo Mexicano de Desarrollo S. A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999) .......................... 72 Harisiades v. Shaughnessy, 342 U.S. 580 (1952) .......... 18 Hawaii v. Trump, 859 F.3d 741 (9th Cir. 2017)............... 6 VI Cases—Continued: Page Hein v. Freedom From Religion Found., Inc., 551 U.S. 587 (2007) ....................................................... 67 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) ........................................................... 55 INS v. Chadha, 462 U.S. 919 (1983) ............................... 46 IRAP v. Trump: 265 F. Supp. 3d 570 (D. Md. 2017) ........................... 13, 66 No. 17-2231, 2018 WL 894413 (4th Cir. Feb. 15, 2018) ..................................... passim IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017) .................. 5 The Japanese Immigrant Case, 189 U.S. 86 (1903) ........... 47 Kent v. Dulles, 357 U.S. 116 (1958) ...................................... 47 Kerry v. Din, 135 S. Ct. 2128 (2015)
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