1168 858 FEDERAL REPORTER, 3d SERIES · 12/19/2017 · Fed. R. App. P. 35; Ninth Cir. R. 35–3; Ninth Cir. Gen. Order 5.1–5.5. Reconsider-ing a case before an en banc panel after

1168 858 FEDERAL REPORTER, 3d SERIES

State of WASHINGTON; Stateof Minnesota, Plaintiffs–

Appellees,

v.

Donald J. TRUMP, President of theUnited States; U.S. Department ofHomeland Security; Rex W. Tillerson,Secretary of State; John F. Kelly, Sec-retary of the Department of Home-land Security; United States of Amer-ica, Defendants–Appellants.

No. 17-35105

United States Court of Appeals,Ninth Circuit.

Filed March 17, 2017

D.C. No. 2:17–cv–00141

Before: WILLIAM C. CANBY, JR.,RICHARD R. CLIFTON, andMICHELLE T. FRIEDLAND, CircuitJudges.

Concurrence by Judge REINHARDT;

Concurrence by Judge BERZON;

Dissent by Judge KOZINSKI;

Dissent by Judge BYBEE;

Dissent by Judge BEA

AMENDED ORDER

This court in a published order previous-ly denied a motion of the government for astay of a restraining order pending appeal.847 F.3d 1151 (9th Cir. 2017). That orderbecame moot when this court granted thegovernment’s unopposed motion to dismissits underlying appeal. Order, Mar. 8, 2017.No party has moved to vacate the publish-ed order. A judge of this court called for avote to determine whether the courtshould grant en banc reconsideration inorder to vacate the published order deny-

ing the stay. The matter failed to receive amajority of the votes of the active judgesin favor of en banc reconsideration. Vaca-tur of the stay order is denied. See U.S.Bancorp Mortgage Co. v. Bonner MallPartnership, 513 U.S. 18, 115 S.Ct. 386,130 L.Ed.2d 233 (1994) (holding that the‘‘extraordinary remedy of vacatur’’ is ordi-narily unjustified when post-decision moot-ness is caused by voluntary action of thelosing party).

This order is being filed along with aconcurrence from Judge Reinhardt, a con-currence from Judge Berzon, a dissentfrom Judge Kozinski, a dissent from JudgeBybee, and a dissent from Judge Bea. Nofurther opinions will be filed.

REINHARDT, Circuit Judge,concurring in the denial of en bancrehearing:

I concur in our court’s decision regard-ing President Trump’s first Executive Or-der—the ban on immigrants and visitorsfrom seven Muslim countries. I also concurin our court’s determination to stand bythat decision, despite the effort of a smallnumber of our members to overturn orvacate it. Finally, I am proud to be a partof this court and a judicial system that isindependent and courageous, and that vig-orously protects the constitutional rights ofall, regardless of the source of any effortsto weaken or diminish them.

Judge Kozinski’s diatribe, filed today,confirms that a small group of judges,having failed in their effort to undo thiscourt’s decision with respect to PresidentTrump’s first Executive Order, now seekon their own, under the guise of a dissentfrom the denial of en banc rehearing of anorder of voluntary dismissal, to decide theconstitutionality of a second Executive Or-der that is not before this court. That ishardly the way the judiciary functions. Pe-culiar indeed!

1169WASHINGTON v. TRUMPCite as 858 F.3d 1168 (9th Cir. 2017)

BERZON, Circuit Judge, concurring inthe denial of reconsideration en banc:

I concur in the court’s denial of rehear-ing en banc regarding vacatur. I have fullconfidence in the panel’s decision. I writeto emphasize that, although one wouldthink otherwise from the three dissentsfrom denial of rehearing en banc, judgesare empowered to decide issues properlybefore them, not to express their personalviews on legal questions no one has askedthem. There is no appeal currently beforeus, and so no stay motion pending thatappeal currently before us either. In otherwords, all the merits commentary in thedissents filed by a small minority of thejudges of this court is entirely out of place.

Here is the background: A three-judgepanel of this court decided that the Gov-ernment was not entitled to a stay pendingappeal of the district court’s TemporaryRestraining Order enjoining enforcementof the President’s January 27, 2017 Execu-tive Order. Washington v. Trump, 847F.3d 1151, 1156 (9th Cir. 2017). The Gov-ernment chose not to challenge the panel’sorder further but instead to draft a revisedExecutive Order, revoking the one thatwas before this court’s panel. Exec. Order13780 of March 6, 2017 §§ 1(i), 13, 82 Fed.Reg. 13209 (published Mar. 9, 2017). ThatOrder was expressly premised on the pan-el opinion. Id. § 1(c), (i). The Governmenthas since elected to dismiss this appeal,and with it its stay request; it filed anunopposed motion to dismiss, which wegranted, and did not in that motion askthat the panel, or an en banc court, vacatethe panel’s opinion.1

So there is now no live controversy be-fore our court regarding either the meritsof the underlying case or the propriety ofthe original restraining order. ‘‘In our sys-

tem of government, courts have no busi-ness deciding legal disputes or expoundingon law in the absence of TTT a case orcontroversy.’’ Already, LLC v. Nike, Inc.,568 U.S. 85, 133 S.Ct. 721, 726, 184L.Ed.2d 553 (2013) (internal quotationmarks omitted) (citing DaimlerChryslerCorp. v. Cuno, 547 U.S. 332, 341, 126 S.Ct.1854, 164 L.Ed.2d 589 (2006)).

One judge of the court nonethelesscalled for a vote of the active judges as towhether to convene an en banc court forthe sole purpose of vacating the panel’sopinion. As the panel’s March 15, 2017order, denying rehearing en banc, notes,vacating an opinion where the losing par-ty’s voluntary actions have mooted the ap-peal is ordinarily improper. See U.S. Ban-corp Mortg. Co. v. Bonner Mall P’ship,513 U.S. 18, 25–27, 115 S.Ct. 386, 130L.Ed.2d 233 (1994); United States v. Pay-ton, 593 F.3d 881, 883–86 (9th Cir. 2010).And as Judge Bybee’s dissent reflects, theonly justification offered for vacating theopinion was a disagreement on the merits.

It is simply not an ‘‘exceptional circum-stance[ ]’’ justifying the ‘‘extraordinaryremedy of vacatur’’ that members of ourcourt disagree with a panel opinion. SeeBonner Mall, 513 U.S. at 26, 29, 115 S.Ct.386. I am aware of no instance in which wehave convened an en banc panel to vacatea precedential opinion on the basis of itsmerits, where no party seeks further ap-pellate review or vacatur. Compare Ani-mal Legal Def. Fund v. Veneman, 490F.3d 725, 725–27 (9th Cir. 2007) (en banc)(Bybee, J., concurring) (vacating a panelopinion in light of a settlement agreementdependent on vacatur reached after a ma-jority of the court already had voted totake the case en banc and designated the

1. On the contrary, both parties have sincerelied on the opinion in staking out theirpositions. See Exec. Order 13780 § 1(c), (i);

Resp. to Defs.’ Notice of Filing of Exec. Orderat 2–11, Washington v. Trump, No. 2:17–cv–00141–JLR (W.D. Wash. Mar. 9, 2017).


panel’s opinion non-precedential). Rather,it is ‘‘inappropriate TTT to vacate mootedcases, in which we have no constitutionalpower to decide the merits, on the basis ofassumptions about the merits.’’ BonnerMall, 513 U.S. at 27, 115 S.Ct. 386.

We as a court make the vast majority ofour decisions through three-judge panels,and we abide by the decisions of thosepanels absent a decision by a majority ofthe active judges that there is good reasonto reconsider the case with a larger, elev-en-judge panel, determined by lot. SeeFed. R. App. P. 35; Ninth Cir. R. 35–3;Ninth Cir. Gen. Order 5.1–5.5. Reconsider-ing a case before an en banc panel afterfull argument and coming to a new, rea-soned decision—which might reach thesame result as the earlier panel decision ormight conclude otherwise—is an entirelydifferent matter from what was soughthere: wiping out the panel’s decision andleaving a vacuum. The en banc court wouldhave no authority whatever to opine on themerits of the case or the propriety of thedistrict court’s stay, as there is simply nolive appeal before us.

Article III of the United States Consti-tution precludes us from revisiting the is-sues addressed in the panel opinion at thispoint, as any decision rendered by the enbanc court necessarily would be advisory.See Already LLC, 133 S.Ct. at 726. A fewdissenting colleagues have nonethelessused the decision by the active judges ofthe court to decline to rewrite history asthe occasion to attack the panel opinion onmyriad grounds. As there is nothing pend-ing before us, it would be entirely inappro-priate to respond in detail—which, I pre-sume, is precisely why the panel did not doso.

In some ways that is too bad. There ismuch to discuss, and such discussion wouldshow that the panel’s opinion was quitecorrect.

To take but one example: The casesJudge Bybee cites regarding the applica-bility of Kleindienst v. Mandel, 408 U.S.753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972),do not govern the case as it came to thepanel. None addresses whether the ‘‘facial-ly legitimate and bona fide reason’’ stan-dard articulated in Mandel applies to ex-ecutive action that categorically revokespermission to enter or reenter the countryalready granted by the Executive Branch.See Kerry v. Din, ––– U.S. ––––, 135 S.Ct.2128, 2139, 192 L.Ed.2d 183 (2015) (Ken-nedy, J., concurring in the judgment);Fiallo v. Bell, 430 U.S. 787, 792–95, 97S.Ct. 1473, 52 L.Ed.2d 50 (1977); Cardenasv. United States, 826 F.3d 1164, 1171–72(9th Cir. 2016); An Na Peng v. Holder,673 F.3d 1248, 1258 (9th Cir. 2012); Busta-mante v. Mukasey, 531 F.3d 1059, 1062(9th Cir. 2008); Padilla–Padilla v. Gon-zales, 463 F.3d 972, 978–79 (9th Cir. 2006);Nadarajah v. Gonzales, 443 F.3d 1069,1082 (9th Cir. 2006); Barthelemy v. Ash-croft, 329 F.3d 1062, 1065–66 (9th Cir.2003); Noh v. INS, 248 F.3d 938, 942 (9thCir. 2001). That the Second Circuit appliedMandel ’s test to a program requiring cer-tain non-immigrants to provide informa-tion to authorities (and to face removalonly after undergoing ‘‘generally applica-ble legal [removal] proceedings to enforcepre-existing immigration laws’’), see Rajahv. Mukasey, 544 F.3d 427, 439 (2d Cir.2008), in no way portends that applicationof Mandel was appropriate here. Thequestion before our panel, unlike the onein Rajah, concerned a sweeping ExecutiveOrder that barred from entry wholegroups of legal permanent residents andvisa holders, among many others, withoutany individualized determination regardingthe revocation. Presumably recognizingthe weight of these individuals’ constitu-tional interests, the President excepted


them from the revised Executive Order.See Exec. Order 13780 § 3.

Judges Kozinski and Bea likewise usedthe filing of the order denying rehearingen banc as to the question of vacating thepanel opinion as a platform for providingtheir personal views as to the merits ofthat opinion. Both concern themselves withissues the panel expressly did not finallyresolve. See Bea, J., dissenting from denialof rehearing en banc, at 1185–88 (discuss-ing parens patriae standing); Kozinski, J.,dissenting from denial of rehearing enbanc, at 1172–74 (discussing the Establish-ment Clause); Washington, 847 F.3d at1161 n.5, 1168 (explicitly declining to reachthe questions of parens patriae standingand, after outlining the parameters of theappropriate Establishment Clause analy-sis, not coming to rest on the likelihood ofsuccess with respect to that issue). Fur-ther, Judge Kozinski expresses at somelength his unhappiness with the invocationof the panel’s Establishment Clause analy-sis in a recent district court order, onceagain venturing an opinion on an appealnot before us—in this instance, not be-cause the appeal was withdrawn but be-cause none has yet been filed.2

There will be ample opportunity, andprobably soon, see Order Granting Motionfor Temporary Restraining Order, Hawaiiv. Trump, No. 1:17–cv–00050 DKW–KSC,2017 WL 1011673 (D. Haw. Mar. 15, 2017),for further review of the important issuesraised by the President’s Executive Or-ders. And it is apparent from the Govern-ment’s delay in promulgating a new Exec-

utive Order, and in the ten-day delay inimplementation within the revised Order,see Exec. Order 13780 § 14, that no over-whelming exigency counsels in favor ofabandoning the ordinary process of adver-sarial appellate review.

I well understand the importance of thecases concerning these Executive Orders.They raise critical questions concerningthe reach of executive and judicial authori-ty, and they could profoundly affect thelives of our citizens, our communities, andour position in the world. It is their veryseriousness that, in my view, commandsthat we as judges speak about them whenwe have authority to do so, which is whenwe are asked by litigants to settle a dis-pute. The court at large has not beenasked. So my dissenting colleagues shouldnot be engaging in a one-sided attack on adecision by a duly constituted panel of thiscourt.

We will have this discussion, or one likeit. But not now.

KOZINSKI, Circuit Judge, with whomCircuit Judges BYBEE, CALLAHAN,BEA and IKUTA join, dissenting from thedenial of reconsideration en banc.

I write separately to highlight two pecu-liar features of the panel’s opinion. First,the panel’s reasoning rests solely on DueProcess. But the vast majority of foreign-ers covered by the executive order have noDue Process rights. Nevertheless, the dis-trict court enjoined the order’s travel pro-visions in their entirety, even as applied tothe millions of aliens who have no constitu-

2. Judge Kozinski also contests the scope ofthe Temporary Restraining Order the paneldeclined to stay, observing that relatively fewof the affected individuals have lawful status.Again, this was not the occasion to opine onthe contours of a now-moot injunction. And,contrary to Judge Kozinski’s representation,the number of individuals covered directly bythe panel’s due process analysis was substan-

tial—there were tens-of-thousands of individ-uals whose already approved visas were re-voked. See Mica Rosenberg & LesleyWroughton, Trump’s Travel Ban Has Revoked60,000 Visas for Now, Reuters, Feb. 3, 2017,http://www.reuters.com/article/us-usa-immigration-visas-idUSKBN15I2EW (citingfigures provided by the Government).


tional rights whatsoever because they havenever set foot on American soil. See Zad-vydas v. Davis, 533 U.S. 678, 693, 121S.Ct. 2491, 150 L.Ed.2d 653 (2001); UnitedStates v. Verdugo–Urquidez, 494 U.S. 259,269, 110 S.Ct. 1056, 108 L.Ed.2d 222(1990). In short, the panel approves thedistrict court’s nationwide injunction usinga rationale that applies to a small percent-age of those covered by the President’sorder.

The panel itself seems to acknowledgethis strange state of affairs when it notesthat there ‘‘might be persons covered’’ bythe district court’s restraining order whohave no Due Process claims. Panel Orderat 23. ‘‘Might’’ indeed! The overwhelmingmajority of the hundreds of millions ofpeople covered by the order lack Due Pro-cess claims; only a tiny proportion havebeen accorded lawful status. Yet the paneloffers no explanation for allowing the dis-trict court’s extraordinarily broad restrain-ing order to stand in full. This St. Bernardis being wagged by a flea on its tail.

Because we have an obligation to main-tain as much of the order as is legal, wenormally ask: Can we keep it operationalin a way that avoids constitutional conflict?The law of our circuit is that we considerthe severability of an executive order justas we would consider the severability of astatute. See Matter of Reyes, 910 F.2d 611,613 (9th Cir. 1990); see also Minnesota v.Mille Lacs Band of Chippewa Indians,526 U.S. 172, 191, 119 S.Ct. 1187, 143

L.Ed.2d 270 (1999) (assuming without de-ciding that the same severability analysisapplies to executive orders as to statutes).1

If we applied this framework to the execu-tive order, we would ‘‘refrain from invali-dating more of the [order] than is neces-sary’’ and ‘‘maintain the [order] in so faras it is valid.’’ Regan v. Time, Inc., 468U.S. 641, 652, 104 S.Ct. 3262, 82 L.Ed.2d487 (1984). This would have been easy: Wecould have approved the injunction as tothe relatively few who have lawful statusin the United States and allowed the exec-utive order to cover everyone else. Thisworkable solution would have respectedthe President’s prerogative to regulate im-migration as delegated to him by 8 U.S.C.§ 1182(f), a provision about which the pan-el says nothing.

Which brings me to the second peculiarfeature of the opinion, a topic about whichthe panel says all too much: the Establish-ment Clause. While its opinion does notcome to rest on this issue, the panel stillsows chaos by holding ‘‘that evidence ofpurpose beyond the face of the challengedlaw may be considered in evaluating Es-tablishment and Equal Protection Clauseclaims.’’ Panel Order at 25. This mattersbecause one Establishment Clause test re-quires a showing of secular purpose,2 andthe panel gives its imprimatur to consider-ing the ‘‘numerous statements by the Pres-ident’’ about Muslims, most of them madebefore he was elected or took office. Id.

1. Indeed, we know that this executive ordercan be severed because the district court didprecisely that: It enjoined the five subsectionsof the executive order relating to travel andleft the other eleven intact. Washington v.Trump, No. C17-0141JLR, 2017 WL 462040,at *2 (W.D. Wash. Feb. 3, 2017) (order grant-ing temporary restraining order).

2. I don’t endorse Lemon v. Kurtzman, 403U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745(1971), as the appropriate test in this context.

Like Judge Bybee, I am puzzled why Lemonshould be plucked from domestic contextsand applied to laws affecting immigration. SeeBybee Dissental at 1178 n.6. If we apply thistest so casually to immigration policy, I seeno reason it should not apply to every foreignpolicy decision made by the political branch-es, including our dealings with various theo-cracies across the globe. I see many reasonsto resist this gross intrusion of the judicialpower into foreign affairs.


This holding has continued vitality: It wasrelied on only days ago by a district judgein Hawaii who, in the ongoing contretempsbetween our circuit and the executive, en-joined the President’s new executive ordernationwide. See Hawaii v. Trump, No. 17–00050 DKW–KSC, 2017 WL 1011673 (D.Haw. Mar. 15, 2017) (order granting tem-porary restraining order). Indeed, thisholding is spreading like kudzu throughthe federal courts. See Int’l Refugee Assis-tance Project v. Trump, No. 17–00361–TDC, at 5, 29, ––– F.Supp.3d ––––, 2017WL 1018235 (D. Md. Mar. 16, 2017).

Taking a cue from the panel’s opinionand citing a trove of informal and unofficialstatements from the President and his ad-visers, see Hawaii at 33–37, the districtjudge found that plaintiffs had shown ‘‘astrong likelihood of succeeding on theirclaim’’ that the new order violates the Es-tablishment Clause, id. at 41. And whyshouldn’t he? After all, the panel made thisevidentiary snark hunt the law of theNinth Circuit; the district judge was (in hisown word) ‘‘commanded’’ to follow it. Id. at32.

This is folly. Candidates say manythings on the campaign trail; they are of-ten contradictory or inflammatory.3 Noshortage of dark purpose can be found bysifting through the daily promises of adrowning candidate, when in truth thepoor shlub’s only intention is to get elect-ed. No Supreme Court case—indeed no

case anywhere that I am aware of—sweeps so widely in probing politicians forunconstitutional motives.4 And why stopwith the campaign? Personal histories,public and private, can become a scavengerhunt for statements that a clever lawyercan characterize as proof of a -phobia oran -ism, with the prefix depending on theconstitutional challenge of the day.

This path is strewn with danger. It willchill campaign speech, despite the fact thatour most basic free speech principles havetheir ‘‘fullest and most urgent applicationprecisely to the conduct of campaigns forpolitical office.’’ McCutcheon v. Fed. Elec-tion Comm’n, ––– U.S. ––––, 134 S.Ct.1434, 1441, 188 L.Ed.2d 468 (2014) (citationand internal quotation marks omitted).And it will mire us in a swamp of unwork-able litigation. Eager research assistantscan discover much in the archives, andthose findings will be dumped on us withno sense of how to weigh them. Does aMeet the Press interview cancel out anappearance on Face the Nation? Does ayear-old presidential proclamation equalthree recent statements from the cabinet?What is the appropriate place of an over-zealous senior thesis or a poorly selectedyearbook quote?

Weighing these imponderables is pre-cisely the kind of ‘‘judicial psychoanalysis’’that the Supreme Court has told us toavoid. McCreary County v. ACLU of Ky.,

3. There is an anecdote, doubtless apocryphal,about Franklin Roosevelt during a whistlestoptour. He had two speeches that took oppositepositions on a hot-button issue of the day.When the train stopped at a town that favoredthe issue, he would give his ‘‘pro’’ speech.And in towns that opposed the issue he’d givehis ‘‘con’’ speech. One day he approached atown that his advisors told him was dividedevenly between the pros and cons. FDR’s ad-visers worried about how he’d handle thesituation, but FDR was undaunted. He gave aspeech and when he was done the pros in theaudience believed he was in their corner and

the cons were convinced he agreed withthem. And that, friends, is the nature of elec-toral politics.

4. Respect for a coordinate branch should alsocounsel against focusing on campaign state-ments. Candidate Trump, unlike PresidentTrump, had not taken an oath to ‘‘preserve,protect and defend the Constitution,’’ U.S.Const. art. II, § 1, cl. 8, and was not bound to‘‘take Care that the Laws be faithfully execut-ed,’’ id. art. II, § 3.


545 U.S. 844, 862, 125 S.Ct. 2722, 162L.Ed.2d 729 (2005). The hopelessness ofthis weighing exercise is why the SupremeCourt has never ‘‘deferred to commentsmade by [government] officials to the me-dia.’’ Hamdan v. Rumsfeld, 548 U.S. 557,623–24 n.52, 126 S.Ct. 2749, 165 L.Ed.2d723 (2006). And it’s why the panel’s casecitations for the supposedly ‘‘well estab-lished’’ proposition that the President’s in-formal statements are admissible, uponcloser inspection, turn out to refer to amuch more limited universe: the text ofcity council resolutions, early drafts of leg-islation, transcripts of legislative discus-sions and contemporaneous statements bylegislative members. See Church of Luku-mi Babalu Aye, Inc. v. City of Hialeah,508 U.S. 520, 534–35, 113 S.Ct. 2217, 124L.Ed.2d 472 (1993); Larson v. Valente, 456U.S. 228, 254, 102 S.Ct. 1673, 72 L.Ed.2d33 (1982); Vill. of Arlington Heights v.Metro. Housing Dev. Corp., 429 U.S. 252,268, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).Limiting the evidentiary universe to activi-ties undertaken while crafting an officialpolicy makes for a manageable, sensibleinquiry. But the panel has approved openseason on anything a politician or his staffmay have said, so long as a lawyer canargue with a straight face that it signals anunsavory motive.

Even if a politician’s past statementswere utterly clear and consistent, usingthem to yield a specific constitutional viola-tion would suggest an absurd result—namely, that the policies of an elected offi-cial can be forever held hostage by theunguarded declarations of a candidate. If acourt were to find that campaign skeletons

prevented an official from pursuing other-wise constitutional policies, what could hedo to cure the defect? Could he stand upand recant it all (‘‘just kidding!’’) and tryagain? Or would we also need a court topolice the sincerity of that mea culpa—piercing into the public official’s ‘‘heart ofhearts’’ to divine whether he reallychanged his mind, just as the SupremeCourt has warned us not to? SeeMcCreary, 545 U.S. at 862, 125 S.Ct. 2722.

This is yet another reason my colleagueserr by failing to vacate this hasty opinion.The panel’s unnecessary statements onthis subject will shape litigation near andfar.5 We’ll quest aimlessly for true inten-tions across a sea of insults and hyperbole.It will be (as it were) a huge, total disaster.

BYBEE, Circuit Judge, with whomKOZINSKI, CALLAHAN, BEA, andIKUTA, Circuit Judges, join, dissentingfrom the denial of reconsideration en banc:

I regret that we did not decide to recon-sider this case en banc for the purpose ofvacating the panel’s opinion. We have anobligation to correct our own errors, par-ticularly when those errors so confoundSupreme Court and Ninth Circuit prece-dent that neither we nor our district courtswill know what law to apply in the future.

The Executive Order of January 27,2017, suspending the entry of certainaliens, was authorized by statute, andpresidents have frequently exercised thatauthority through executive orders andpresidential proclamations. Whatever we,as individuals, may feel about the Presi-

5. Contrary to the claims of Judges Reinhardtand Berzon, the substance of the panel’s opin-ion continues to be highly relevant. Becausethe panel has refused to vacate it, the opinioncontinues to be the law of the circuit and isbeing followed by courts in the circuit andelsewhere. My criticism bears directly on the

mistake our court has made in failing to va-cate the opinion, and will hopefully warnother courts away from similar errors. Mycolleagues’ effort to muzzle criticism of anegregiously wrong panel opinion betrays theirinsecurity about the opinion’s legal analysis.


dent or the Executive Order,1 the Presi-dent’s decision was well within the powersof the presidency, and ‘‘[t]he wisdom of thepolicy choices made by [the President] isnot a matter for our consideration.’’ Sale v.Haitian Ctrs. Council, Inc., 509 U.S. 155,165, 113 S.Ct. 2549, 125 L.Ed.2d 128(1993). This is not to say that presidentialimmigration policy concerning the entry ofaliens at the border is immune from judi-cial review, only that our review is limitedby Kleindienst v. Mandel, 408 U.S. 753, 92S.Ct. 2576, 33 L.Ed.2d 683 (1972)—and thepanel held that limitation inapplicable. Idissent from our failure to correct thepanel’s manifest error.

I

In this section I provide background onthe source of Congress’s and the Presi-dent’s authority to exclude aliens, the Ex-ecutive Order at issue here, and the pro-ceedings in this case. The informed readermay proceed directly to Part II.

A

‘‘The exclusion of aliens is a fundamentalact of sovereignty.’’ United States ex rel.Knauff v. Shaughnessy, 338 U.S. 537, 542,70 S.Ct. 309, 94 L.Ed. 317 (1950); see alsoLandon v. Plasencia, 459 U.S. 21, 32, 103S.Ct. 321, 74 L.Ed.2d 21 (1982). Congresshas the principal power to control the na-tion’s borders, a power that follows natu-rally from its power ‘‘[t]o establish an uni-form rule of Naturalization,’’ U.S. Const.art. I, § 8, cl. 4, and from its authority to‘‘regulate Commerce with foreign Na-tions,’’ id. art. I, § 8, cl. 3, and to ‘‘declareWar,’’ id. art. I, § 8, cl. 11. See Am. Ins.Ass’n v. Garamendi, 539 U.S. 396, 414, 123S.Ct. 2374, 156 L.Ed.2d 376 (2003); Hari-

siades v. Shaughnessy, 342 U.S. 580, 588–89, 72 S.Ct. 512, 96 L.Ed. 586 (1952)(‘‘[A]ny policy toward aliens is vitally andintricately interwoven with contemporane-ous policies in regard to the conduct offoreign relations [and] the war pow-erTTTT’’). The President likewise has someconstitutional claim to regulate the entryof aliens into the United States. ‘‘Althoughthe source of the President’s power to actin foreign affairs does not enjoy any textu-al detail, the historical gloss on the ‘execu-tive Power’ vested in Article II of theConstitution has recognized the Presi-dent’s ‘vast share of responsibility for theconduct of our foreign relations.’ ’’ Garam-endi, 539 U.S. at 414, 123 S.Ct. 2374 (quot-ing Youngstown Sheet & Tube Co. v. Saw-yer, 343 U.S. 579, 610–11, 72 S.Ct. 863, 96L.Ed. 1153 (1952) (Frankfurter, J., concur-ring)). The foreign policy powers of thepresidency derive from the President’srole as ‘‘Commander in Chief,’’ U.S. Const.art. II, § 2, cl. 1, his right to ‘‘receiveAmbassadors and other public Ministers,’’id. art. II, § 3, and his general duty to‘‘take Care that the Laws be faithfullyexecuted,’’ id. See Garamendi, 539 U.S. at414, 123 S.Ct. 2374. The ‘‘power of exclu-sion of aliens is also inherent in the execu-tive.’’ Knauff, 338 U.S. at 543, 70 S.Ct. 309.

In the Immigration and Nationality Actof 1952, Congress exercised its authorityto prescribe the terms on which aliens maybe admitted to the United States, the con-ditions on which they may remain withinour borders, and the requirements for be-coming naturalized U.S. citizens. 8 U.S.C.§ 1101 et seq. Congress also delegated au-thority to the President to suspend theentry of ‘‘any class of aliens’’ as he deemsappropriate:

1. Our personal views are of no consequence. Inote this only to emphasize that I have writ-ten this dissent to defend an important consti-tutional principle—that the political branches,

informed by foreign affairs and national secu-rity considerations, control immigration sub-ject to limited judicial review—and not todefend the administration’s policy.


Whenever the President finds that theentry of any aliens or of any class ofaliens into the United States would bedetrimental to the interests of the Unit-ed States, he may by proclamation, andfor such period as he shall deem neces-sary, suspend the entry of all aliens orany class of aliens as immigrants ornonimmigrants, or impose on the entryof aliens any restrictions he may deemto be appropriate.

Id. § 1182(f). Many presidents have in-voked the authority of § 1182(f) to bar theentry of broad classes of aliens from iden-tified countries.2

In Executive Order No. 13769, the Pres-ident exercised the authority granted in§ 1182(f). Exec. Order No. 13769 § 3(c)(Jan. 27, 2017), revoked by Exec. OrderNo. 13780 § 1(i) (Mar. 6, 2017). The Exec-utive Order covered a number of subjects.Three provisions were particularly rele-vant to this litigation. First, the ExecutiveOrder found that ‘‘the immigrant and non-immigrant entry into the United States ofaliens from [seven] countries TTT would bedetrimental to the interests of the UnitedStates’’ and ordered the suspension of en-try for nationals (with certain exceptions)from those countries for 90 days. Id. Theseven countries were Iran, Iraq, Libya,Somalia, Sudan, Syria, and Yemen. Sec-ond, it directed the Secretary of State tosuspend the U.S. Refugee Admissions Pro-

gram (USRAP) for 120 days. However,exceptions could be made ‘‘on a case-by-case basis’’ in the discretion of the Secre-taries of State and Homeland Security.Once USRAP resumed, the Secretary ofState was ‘‘to prioritize refugee claimsmade by individuals on the basis of reli-gious-based persecution, provided that thereligion of the individual [was] a minorityreligion in the individual’s country of na-tionality.’’ Id. § 5(a), (b), (e). Third, it sus-pended indefinitely the entry of Syrianrefugees. Id. § 5(c).

B

Three days after the President signedthe Executive Order, the States of Wash-ington and Minnesota brought suit in theWestern District of Washington seekingdeclaratory and injunctive relief on behalfof their universities, businesses, citizens,and residents that were affected by theExecutive Order in various ways. TheStates also sought a temporary restrainingorder (TRO). On February 3, 2017, follow-ing a hearing, the district court, withoutmaking findings of fact or conclusions oflaw with respect to the merits of the suit,issued a nationwide TRO against the en-forcement of §§ 3(c), 5(a)–(c), (e). The dis-trict court proposed further briefing by theparties and a hearing on the States’ re-quest for a preliminary injunction.3

2. See, e.g., Exec. Order No. 12324 (Sept. 29,1981) (Reagan and Haiti); Proclamation No.5517 (Aug. 22, 1986) (Reagan and Cuba);Exec. Order No. 12807 (May 24, 1992)(George H.W. Bush and Haiti); ProclamationNo. 6958 (Nov. 22, 1996) (Clinton and Su-dan); Proclamation No. 7359 (Oct. 10, 2000)(Clinton and Sierra Leone); Exec. Order No.13276 (Nov. 15, 2002) (George W. Bush andHaiti); Exec. Order No. 13692 (Mar. 8, 2015)(Obama and Venezuela); Exec. Order No.13726 (Apr. 19, 2016) (Obama and Libya).

3. That same day, the district court for theDistrict of Massachusetts denied a prelimi-

nary injunction to petitioners challenging theExecutive Order on equal protection, Estab-lishment Clause, due process, and APAgrounds. Louhghalam v. Trump, 230F.Supp.3d 26, 2017 WL 479779 (D. Mass.Feb. 3, 2017). The following week, the districtcourt for the Eastern District of Virginiagranted a preliminary injunction against en-forcement of the Executive Order in Virginia.The court’s sole grounds were based on theEstablishment Clause. Aziz v. Trump, No.1:17–cv–116 (LMB/TCB), ––– F.Supp.3d ––––,2017 WL 580855 (E.D. Va. Feb. 13, 2017).


The United States sought a stay of thedistrict court’s order pending an appeal. Amotions panel of our court, on an expedit-ed basis (including oral argument by phoneinvolving four time zones), denied the stay.Washington v. Trump, 847 F.3d 1151 (9thCir. 2017).

Among other things, the panel drewthree critical conclusions. First, the panelheld that, although we owe deference tothe political branches, we can review theExecutive Order for constitutionality un-der the same standards as we would re-view challenges to domestic policies. Seeid. at 1161–64. Second, the panel foundthat the States were likely to succeed ontheir due process arguments because ‘‘theExecutive Order [does not] provide[ ] whatdue process requires, such as notice and ahearing prior to restricting an individual’sability to travel.’’ Id. at 1164. Third, thepanel found that there were at least ‘‘sig-nificant constitutional questions’’ under theEstablishment Clause raised by the factthat the seven countries identified in theExecutive Order are principally Muslimcountries and the President, before andafter his election, made reference to ‘‘aMuslim ban.’’ Id. at 1168.

In response to the panel’s decision not tostay the district court’s TRO pending ap-peal, a judge of our court asked for enbanc review. The court invited the partiesto comment on whether the entire courtshould review the judgment. The U.S. De-partment of Justice asked that the panelhold the appeal while the administrationconsidered the appropriate next steps and

vacate the opinion upon the issuance ofany new executive order. A majority of thecourt agreed to stay the en banc process.In the end, the President issued a newExecutive Order on March 6, 2017, thatreferred to the panel’s decision and ad-dressed some of the panel’s concerns. Inlight of the new Executive Order, the De-partment of Justice moved to dismiss theappeal in this case. The panel granted themotion to dismiss but did not vacate itsprecedential opinion.4

Ordinarily, when an appeal is dismissedbecause it has become moot, any opinionspreviously issued in the case remain on thebooks. U.S. Bancorp Mortg. Co. v. BonnerMall P’ship, 513 U.S. 18, 26, 115 S.Ct. 386,130 L.Ed.2d 233 (1994) (‘‘Judicial prece-dents are presumptively correct and valu-able to the legal community as a whole.They TTT should stand unless a court con-cludes that the public interest would beserved by a vacatur.’’ (citation omitted)).The court, however, has discretion to va-cate its opinion to ‘‘clear[ ] the path forfuture relitigation of the issues betweenthe parties,’’ United States v. Munsing-wear, Inc., 340 U.S. 36, 40, 71 S.Ct. 104, 95L.Ed. 36 (1950), or where ‘‘exceptional cir-cumstances TTT counsel in favor of such acourse,’’ U.S. Bancorp Mortg., 513 U.S. at29, 115 S.Ct. 386. We should have exer-cised that discretion in this case becausethe panel made a fundamental error.5 Itneglected or overlooked critical cases bythe Supreme Court and by our court mak-ing clear that when we are reviewing deci-sions about who may be admitted into the

4. Proceedings in the original suit filed byWashington and Minnesota are still pendingin the Western District of Washington. TheState of Hawaii also filed suit in the Districtof Hawaii and has asked for a TRO enjoiningthe second Executive Order. See Plaintiffs’Motion for Temporary Restraining Order, Ha-wai’i v. Trump, No. 1:17–cv–00050–DKW–KSC (D. Haw. Mar. 8, 2017), ECF No. 65.

5. We have previously said that it is procedur-ally proper for a judge ‘‘to seek an en bancrehearing for the purpose of vacating [a pan-el’s] decision.’’ United States v. Payton, 593F.3d 881, 886 (9th Cir. 2010).


United States, we must defer to the judg-ment of the political branches.6 That doesnot mean that we have no power of judicialreview at all, but it does mean that ourauthority to second guess or to probe thedecisions of those branches is carefullycircumscribed. The panel’s analysis con-flicts irreconcilably with our prior cases.We had an obligation to vacate the panel’sopinion in order to resolve that conflict andto provide consistent guidance to districtcourts and future panels of this court.

II

The panel began its analysis from twoimportant premises: first, that it is an ‘‘un-controversial principle’’ that we ‘‘owe sub-stantial deference to the immigration andnational security policy determinations ofthe political branches,’’ Washington, 847F.3d at 1161; second, that courts can re-view constitutional challenges to executiveactions, see id. at 1164. I agree with bothof these propositions. Unfortunately, thatwas both the beginning and the end of thedeference the panel gave the President.

How do we reconcile these two titanprinciples of constitutional law? It is in-deed an ‘‘uncontroversial principle’’ thatcourts must defer to the political judgmentof the President and Congress in mattersof immigration policy. The Supreme Courthas said so, plainly and often. See, e.g.,Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct.1883, 48 L.Ed.2d 478 (1976) (‘‘[T]he re-sponsibility for regulating the relationshipbetween the United States and our alienvisitors has been committed to the politicalbranches of the Federal Government.’’);

Harisiades, 342 U.S. at 590, 72 S.Ct. 512(‘‘[N]othing in the structure of our Govern-ment or the text of our Constitution wouldwarrant judicial review by standards whichwould require us to equate our politicaljudgment with that of Congress.’’);Shaughnessy v. United States ex rel. Mez-ei, 345 U.S. 206, 210, 73 S.Ct. 625, 97 L.Ed.956 (1953) (‘‘Courts have long recognizedthe power to expel or exclude aliens as afundamental sovereign attribute exercisedby the Government’s political departmentslargely immune from judicial control.’’);Henderson v. Mayor of N.Y., 92 U.S. (2Otto) 259, 270–71, 23 L.Ed. 543 (1876). Onthe other hand, it seems equally funda-mental that the judicial branch is a criticalbackstop to defend the rights of individualsagainst the excesses of the politicalbranches. See INS v. Chadha, 462 U.S.919, 941, 103 S.Ct. 2764, 77 L.Ed.2d 317(1983) (reviewing Congress’s use of powerover aliens to ensure that ‘‘the exercise ofthat authority does not offend some otherconstitutional restriction’’ (quoting Buckleyv. Valeo, 424 U.S. 1, 132, 96 S.Ct. 612, 46L.Ed.2d 659 (1976))).

The Supreme Court has given us a wayto analyze these knotty questions, but itdepends on our ability to distinguish be-tween two groups of aliens: those who arepresent within our borders and those whoare seeking admission. As the Court ex-plained in Leng May Ma v. Barber,

It is important to note at the outsetthat our immigration laws have longmade a distinction between those alienswho have come to our shores seeking

6. To be clear, the panel made several otherlegal errors. Its holding that the States werelikely to succeed on the merits of their proce-dural due process claims confounds century-old precedent. And its unreasoned assumptionthat courts should simply plop EstablishmentClause cases from the domestic context overto the foreign affairs context ignores the reali-

ties of our world. But these errors are notwhat justified vacatur. Instead, it is the pan-el’s treatment of Kleindienst v. Mandel, 408U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683(1972), that called for an extraordinary exer-cise of our discretion to vacate the panel’sopinion.


admission, TTT and those who are withinthe United States after an entry, irre-spective of its legality. In the latter in-stance the Court has recognized addi-tional rights and privileges not extendedto those in the former category who aremerely ‘‘on the threshold of initial en-try.’’

357 U.S. 185, 187, 78 S.Ct. 1072, 2 L.Ed.2d1246 (1958) (quoting Mezei, 345 U.S. at212, 73 S.Ct. 625). The panel did not recog-nize that critical distinction and it led tomanifest error. The panel’s decision is notonly inconsistent with clear SupremeCourt authority, but the panel missed awhole bunch of our own decisions as well.

A

The appropriate test for judging execu-tive and congressional action affectingaliens who are outside our borders andseeking admission is set forth in Klein-dienst v. Mandel, 408 U.S. 753, 92 S.Ct.2576, 33 L.Ed.2d 683 (1972). In Mandel,the government had denied a visa to aMarxist journalist who had been invited toaddress conferences at Columbia, Prince-ton, and Stanford, among other groups.Mandel and American university profes-sors brought facial and as-applied chal-lenges under the First and Fifth Amend-ments. The Court first made clear thatMandel himself, ‘‘as an unadmitted andnonresident alien, had no constitutionalright of entry.’’ Id. at 762, 92 S.Ct. 2576.Then it addressed the First Amendmentclaims of the professors who had invitedhim. Recognizing that ‘‘First Amendmentrights [were] implicated’’ in the case, theCourt declined to revisit the principle thatthe political branches may decide whom toadmit and whom to exclude. Id. at 765, 92S.Ct. 2576. It concluded that when theexecutive has exercised its authority toexclude aliens ‘‘on the basis of a faciallylegitimate and bona fide reason, the courtswill neither look behind the exercise of

that discretion, nor test it by balancing itsjustification against the First Amendmentinterests of those who seek personal com-munication with the applicant.’’ Id. at 770,92 S.Ct. 2576.

In this case, the government arguedthat Mandel provided the proper frame-work for analyzing the States’ claims. Thepanel, however, tossed Mandel aside be-cause it involved only a decision by a con-sular officer, not the President. See Wash-ington, 847 F.3d at 1162 (‘‘The presentcase, by contrast, is not about the applica-tion of a specifically enumerated congres-sional policy to the particular facts pre-sented in an individual visa application.Rather the States are challenging thePresident’s promulgation of sweeping im-migration policy.’’). Two responses. First,the panel’s declaration that we cannot lookbehind the decision of a consular officer,but can examine the decision of the Presi-dent stands the separation of powers onits head. We give deference to a consularofficer making an individual determination,but not the President when making abroad, national security-based decision?With a moment’s thought, that principlecannot withstand the gentlest inquiry, andwe have said so. See Bustamante v. Muka-sey, 531 F.3d 1059, 1062 n.1 (9th Cir. 2008)(‘‘We are unable to distinguish Mandel onthe grounds that the exclusionary decisionchallenged in that case was not a consularvisa denial, but rather the Attorney Gen-eral’s refusal to waive Mandel’s inadmissi-bility. The holding is plainly stated interms of the power delegated by Congressto ‘the Executive.’ The Supreme Courtsaid nothing to suggest that the reasoningor outcome would vary according to whichexecutive officer is exercising the Congres-sionally-delegated power to exclude.’’).Second, the promulgation of broad policyis precisely what we expect the politicalbranches to do; Presidents rarely, if ever,


trouble themselves with decisions to admitor exclude individual visa-seekers. SeeKnauff, 338 U.S. at 543, 70 S.Ct. 309(‘‘[B]ecause the power of exclusion ofaliens is also inherent in the executivedepartment of the sovereign, Congressmay in broad terms authorize the execu-tive to exercise the power TTT for the bestinterests of the country during a time ofnational emergency.’’). If the panel is cor-rect, it just wiped out any principle ofdeference to the executive.

Worse, the panel’s decision missed en-tirely Fiallo v. Bell, 430 U.S. 787, 97 S.Ct.1473, 52 L.Ed.2d 50 (1977), and Fialloanswers the panel’s reasons for brushingoff Mandel. In Fiallo, the plaintiff broughta facial due process challenge to immigra-tion laws giving preferential treatment tonatural mothers of illegitimate children. Asin Mandel, the constitutional challenge inFiallo was ‘‘based on [the] constitutionalrights of citizens.’’ Id. at 795, 97 S.Ct. 1473.The Court acknowledged that the chal-lenge invoked ‘‘ ‘double-barreled’ discrimi-nation based on sex and illegitimacy.’’ Id.at 794, 97 S.Ct. 1473. Either ground, ifbrought in a suit in a domestic context,would have invoked some kind of height-ened scrutiny. See Craig v. Boren, 429U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397(1976) (sex discrimination); Trimble v. Gor-don, 430 U.S. 762, 769, 97 S.Ct. 1459, 52L.Ed.2d 31 (1977) (illegitimacy). Rejectingthe claim that ‘‘the Government’s power inthis area is never subject to judicial re-view,’’ Fiallo, 430 U.S. at 795–96, 795 n.6,97 S.Ct. 1473, the Court held that Man-del ’s ‘‘facially legitimate and bona fide rea-son’’ test was the proper standard: ‘‘Wecan see no reason to review the broadcongressional policy choice at issue hereunder a more exacting standard than wasapplied in Kleindienst v. Mandel, a FirstAmendment case.’’ Id. at 795, 97 S.Ct.1473; see also id. at 794, 97 S.Ct. 1473(rejecting ‘‘the suggestion that more

searching judicial scrutiny is required’’).Importantly, the Court reached that con-clusion despite the fact the immigrationlaws at issue promulgated ‘‘sweeping immi-gration policy,’’ Washington, 847 F.3d at1162, just as the Executive Order did.

The panel’s holding that ‘‘exercises ofpolicymaking authority at the highest lev-els of the political branches are plainly notsubject to the Mandel standard,’’ id., issimply irreconcilable with the SupremeCourt’s holding that it could ‘‘see no rea-son to review the broad congressional poli-cy choice at issue [there] under a moreexacting standard than was applied inKleindienst v. Mandel,’’ Fiallo, 430 U.S. at795, 97 S.Ct. 1473.

Fiallo wasn’t the only Supreme Courtcase applying Mandel that the panelmissed. In Kerry v. Din, ––– U.S. ––––,135 S.Ct. 2128, 192 L.Ed.2d 183 (2015), theCourt confronted a case in which Din (aU.S. citizen) claimed that the government’srefusal to grant her Afghani husband avisa violated her own constitutional rightto live with her husband. A plurality heldthat Din had no such constitutional right.Id. at 2131 (plurality opinion). Justice Ken-nedy, joined by Justice Alito, concurred inthe judgment, and we have held that hisopinion is controlling. Cardenas v. UnitedStates, 826 F.3d 1164, 1171 (9th Cir. 2016).For purposes of the case, Justice Kennedyassumed that Din had a protected libertyinterest, but he rejected her claim to addi-tional procedural due process. ‘‘The conclu-sion that Din received all the process towhich she was entitled finds its most sub-stantial instruction in the Court’s decisionin Kleindienst v. Mandel.’’ Din, 135 S.Ct.at 2139 (Kennedy, J., concurring in thejudgment) (citation omitted). After recitingMandel ’s facts and holding, Justice Ken-nedy concluded that ‘‘[t]he reasoning andthe holding in Mandel control here. Thatdecision was based upon due consideration


of the congressional power to make rulesfor the exclusion of aliens, and the ensuingpower to delegate authority to the Attor-ney General to exercise substantial discre-tion in that field.’’ Id. at 2140. Once theexecutive makes a decision ‘‘on the basis ofa facially legitimate and bona fide reason,’’the courts may ‘‘ ‘neither look behind theexercise of that discretion, nor test it bybalancing its justification against’ the con-stitutional interests of citizens the visa de-nial might implicate.’’ Id. (quoting Mandel,408 U.S. at 770, 92 S.Ct. 2576). ApplyingMandel, Justice Kennedy concluded that‘‘the Government satisfied any obligation itmight have had to provide Din with afacially legitimate and bona fide reason forits action when it provided notice that herhusband was denied admission to the coun-try under [8 U.S.C.] § 1182(a)(3)(B).’’ Id.at 2141. No more was required, and ‘‘[b]yrequiring the Government to providemore, the [Ninth Circuit] erred in adjudi-cating Din’s constitutional claims.’’ Id.

The importance and continuing applica-bility of the framework set out in Mandeland applied in Fiallo and Din has beenrecognized in circumstances remarkablysimilar to the Executive Order. After theattacks of September 11, 2001, the Attor-ney General instituted the National Secu-rity Entry–Exit Registration System. Thatprogram required nonimmigrant alienmales (residing in the United States) overthe age of sixteen from twenty-five coun-tries—twenty-four Muslim-majority coun-tries plus North Korea—to appear forregistration and fingerprinting. One courtreferred to the program as ‘‘enhancedmonitoring.’’ See Rajah v. Mukasey, 544F.3d 427, 433–34, 439 (2d Cir. 2008) (de-scribing the program).7 The aliens subjectto the program filed a series of suits in

federal courts across the United States.They contended that the program uncon-stitutionally discriminated against them onthe basis of ‘‘their religion, ethnicity, gen-der, and race.’’ Id. at 438. Similar to theclaims here, the petitioners argued thatthe program ‘‘was motivated by an im-proper animus toward Muslims.’’ Id. at439.

Citing Fiallo and applying the Mandeltest, the Second Circuit held that ‘‘[t]hemost exacting level of scrutiny that we willimpose on immigration legislation is ra-tional basis review.’’ Id. at 438 (alterationin original) (citation omitted). The courtthen found ‘‘a facially legitimate and bonafide reason for’’ the registration require-ments because the countries were ‘‘select-ed on the basis of national security crite-ria.’’ Id. at 438–39. The court rejected ashaving ‘‘no basis’’ the petitioners’ claim ofreligious animus. Id. at 439. The courtobserved that ‘‘one major threat of terror-ist attacks comes from radical Islamicgroups.’’ Id. It added:

Muslims from non-specified countrieswere not subject to registration. Aliensfrom the designated countries who werequalified to be permanent residents inthe United States were exemptedwhether or not they were Muslims. Theprogram did not target only Muslims:non-Muslims from the designated coun-tries were subject to registration.

Id. Finally, the court refused to review theprogram for ‘‘its effectiveness and wis-dom’’ because the court ‘‘ha[d] no way ofknowing whether the Program’s enhancedmonitoring of aliens ha[d] disrupted ordeterred attacks. In any event, such aconsideration [was] irrelevant because anex ante rather than ex post assessment ofthe Program [was] required under the ra-

7. The aliens subject to the program were des-ignated by country in a series of notices. Thefirst notice covered five countries: Iran, Iraq,

Libya, Sudan, and Syria. See Rajah, 544 F.3dat 433 n.3.


tional basis test.’’ Id. The Second Circuitthus unanimously rejected the petitioners’constitutional challenges and ‘‘join[ed] ev-ery circuit that ha[d] considered the issuein concluding that the Program [did] notviolate Equal Protection guarantees.’’ Id.;see Malik v. Gonzales, 213 Fed.Appx. 173,174–75 (4th Cir. 2007); Kandamar v. Gon-zales, 464 F.3d 65, 72–74 (1st Cir. 2006);Zafar v. U.S. Attorney Gen., 461 F.3d1357, 1367 (11th Cir. 2006); Hadayat v.Gonzales, 458 F.3d 659, 664–65 (7th Cir.2006); Shaybob v. Attorney Gen., 189 Fed.Appx. 127, 130 (3d Cir. 2006); Ahmed v.Gonzales, 447 F.3d 433, 439 (5th Cir.2006); see also Adenwala v. Holder, 341Fed.Appx. 307, 309 (9th Cir. 2009); Roud-nahal v. Ridge, 310 F.Supp.2d 884, 892(N.D. Ohio 2003). The panel was obliviousto this important history.

The combination of Mandel, Fiallo, andDin, and the history of their application tothe post-9/11 registration program, is dev-astating to the panel’s conclusion that wecan simply apply ordinary constitutionalstandards to immigration policy. Com-pounding its omission, the panel missed allof our own cases applying Mandel to con-stitutional challenges to immigration deci-sions. See, e.g., Cardenas, 826 F.3d at 1171(discussing Mandel and Din extensively asthe ‘‘standard of judicial review applicableto the visa denial’’ where petitioner allegeddue process and equal protection viola-tions); An Na Peng v. Holder, 673 F.3d1248, 1258 (9th Cir. 2012) (applying theMandel standard to reject a lawful perma-nent resident’s equal protection challengeagainst a broad policy); Bustamante, 531F.3d at 1060 (applying Mandel to a dueprocess claim and describing Mandel as ‘‘ahighly constrained review’’); Padilla–Pa-dilla v. Gonzales, 463 F.3d 972, 978–79(9th Cir. 2006) (applying Mandel to a dueprocess challenge to the Illegal Immigra-tion Reform and Immigrant ResponsibilityAct of 1996); Nadarajah v. Gonzales, 443

F.3d 1069, 1082 (9th Cir. 2006) (using theMandel standard to address an alien’schallenge to the executive’s denial of pa-role to temporarily enter the UnitedStates, and finding the executive’s reasons‘‘were not facially legitimate and bonafide’’); Barthelemy v. Ashcroft, 329 F.3d1062, 1065 (9th Cir. 2003) (applying Fialloto a facial equal protection challenge basedon ‘‘former marital status’’); Noh v. INS,248 F.3d 938, 942 (9th Cir. 2001) (applyingMandel when an alien challenged the revo-cation of his visa); see also Andrade–Gar-cia v. Lynch, 828 F.3d 829, 834–35 (9thCir. 2016) (discussing review under Man-del). Like the Second Circuit in Rajah, wetoo have repeatedly ‘‘equated [the Mandel]standard of review with rational basis re-view.’’ Barthelemy, 329 F.3d at 1065; seeAn Na Peng, 673 F.3d at 1258; Ablang v.Reno, 52 F.3d 801, 805 (9th Cir. 1995). It isequally clear from our cases that we applyMandel whether we are dealing with anindividual determination by the AttorneyGeneral or a consular officer, as in Mandeland Din, or with broad policy determina-tions, as in Fiallo. The panel’s clear mis-statement of law justifies vacating theopinion.

B

Applying Mandel here, the panel’s errorbecomes obvious: the Executive Order waseasily ‘‘facially legitimate’’ and supportedby a ‘‘bona fide reason.’’ As I have quotedabove, § 1182(f) authorizes the Presidentto suspend the entry of ‘‘any class ofaliens’’ as he deems appropriate:

Whenever the President finds that theentry of any aliens or of any class ofaliens into the United States would bedetrimental to the interests of the Unit-ed States, he may by proclamation, andfor such period as he shall deem neces-sary, suspend the entry of all aliens orany class of aliens as immigrants or


nonimmigrants, or impose on the entryof aliens any restrictions he may deemto be appropriate.

8 U.S.C. § 1182(f).8 Invoking this authori-ty and making the requisite findings, thePresident ‘‘proclaim[ed] that the immi-grant and nonimmigrant entry into theUnited States of aliens from [seven]countries TTT would be detrimental to theinterests of the United States,’’ and hesuspended their entry for 90 days. Exec.Order No. 13769 § 3(c). As the ExecutiveOrder further noted, the seven coun-tries—Iraq, Iran, Libya, Somalia, Sudan,Syria, and Yemen—had all been previous-ly identified by either Congress, the Sec-retary of State, or the Secretary ofHomeland Security (all in prior adminis-trations) as ‘‘countries or areas of con-cern’’ because of terrorist activity.9 ThePresident noted that we ‘‘must be vigi-lant’’ in light of ‘‘deteriorating conditionsin certain countries due to war, strife, di-saster, and civil unrest.’’ Id. § 1. ThePresident’s actions might have been moreaggressive than those of his predecessors,but that was his prerogative. Thus, thePresident’s actions were supported by a‘‘facially legitimate and bona fide’’ reason.

Justice Kennedy indicated in Din that itmight have been appropriate to ‘‘look be-hind’’ the government’s exclusion of Din’s

husband if there were ‘‘an affirmativeshowing of bad faith on the part of theconsular officer who denied [the husband’s]visa.’’ Din, 135 S.Ct. at 2141 (Kennedy, J.,concurring in the judgment). Because thepanel never discussed Din, let aloneclaimed that Justice Kennedy’s commentmight allow us to peek behind the faciallegitimacy of the Executive Order, I neednot address the argument in detail. Sufficeit to say, it would be a huge leap tosuggest that Din ’s ‘‘bad faith’’ exceptionalso applies to the motives of broad-policymakers as opposed to those of consularofficers.

Even if we have questions about thebasis for the President’s ultimate find-ings—whether it was a ‘‘Muslim ban’’ orsomething else—we do not get to peekbehind the curtain. So long as there is one‘‘facially legitimate and bona fide’’ reasonfor the President’s actions, our inquiry isat an end. As the Court explained in Renov. American–Arab Anti–DiscriminationCommittee, 525 U.S. 471, 119 S.Ct. 936,142 L.Ed.2d 940 (1999):

The Executive should not have to dis-close its ‘‘real’’ reasons for deeming na-tionals of a particular country a specialthreat—or indeed for simply wishing toantagonize a particular foreign countryby focusing on that country’s nationals—

8. Regrettably, the panel never once men-tioned § 1182(f), nor did it acknowledge thatwhen acting pursuant it to it, the govern-ment’s ‘‘authority is at its maximum, for itincludes all that [the President] possesses inhis own right plus all the Congress can dele-gate.’’ Youngstown, 343 U.S. at 635, 72 S.Ct.863 (Jackson, J., concurring); see Knauff, 338U.S. at 542, 70 S.Ct. 309 (‘‘When Congressprescribes a procedure concerning the admis-sibility of aliens, it is not dealing alone with alegislative power. It is implementing an inher-ent executive power.’’).

9. Iraq and Syria: Congress has disqualifiednationals or persons who have been presentin Iraq and Syria from eligibility for the Visas

Waiver Program. 8 U.S.C.§ 1187(a)(12)(A)(i)(I), (ii)(I).

Iran, Sudan, and Syria: Under§ 1187(a)(12)(A)(i)(II), (ii)(II), the Secretaryof State has designated Iran, Sudan, and Syr-ia as state sponsors of terrorism because the‘‘government TTT repeatedly provided supportof acts of international terrorism.’’

Libya, Somalia, and Yemen: Similarly, un-der § 1187(a)(12)(A)(i)(III), (ii)(III), the Sec-retary of Homeland Security has designatedLibya, Somalia, and Yemen as countrieswhere a foreign terrorist organization has asignificant presence in the country or wherethe country is a safe haven for terrorists.


and even it if did disclose them a courtwould be ill equipped to determine theirauthenticity and utterly unable to assesstheir adequacy.

Id. at 491, 119 S.Ct. 936; see Mezei, 345U.S. at 210–12, 73 S.Ct. 625; Knauff, 338U.S. at 543, 70 S.Ct. 309.

The panel faulted the government fornot coming forward in support of the Ex-ecutive Order with evidence—including‘‘classified information.’’ Washington, 847F.3d at 1168 & nn.7–8. First, that is pre-cisely what the Court has told us weshould not do. Once the facial legitimacy isestablished, we may not ‘‘look behind theexercise of that discretion.’’ Fiallo, 430U.S. at 795–96, 97 S.Ct. 1473 (quotingMandel, 408 U.S. at 770, 92 S.Ct. 2576).The government may provide more details‘‘when it sees fit’’ or if Congress ‘‘re-quir[es] it to do so,’’ but we may notrequire it. Din, 135 S.Ct. at 2141 (Kenne-dy, J., concurring in the judgment). Sec-ond, that we have the capacity to hold theconfidences of the executive’s secrets doesnot give us the right to examine them,even under the most careful conditions. AsJustice Kennedy wrote in Din, ‘‘in light ofthe national security concerns the terror-ism bar addresses[,] TTT even if TTT sensi-tive facts could be reviewed by courts incamera, the dangers and difficulties ofhandling such delicate security materialfurther counsel against requiring disclo-sure.’’ Id.; see Chi. & S. Air Lines v.Waterman S.S. Corp., 333 U.S. 103, 111, 68S.Ct. 431, 92 L.Ed. 568 (1948) (‘‘It wouldbe intolerable that courts, without the rele-vant information, should review and per-haps nullify actions of the Executive takenon information properly held secret. Norcan courts sit in camera in order to betaken into executive confidences.’’). Whenwe apply the correct standard of review,the President does not have to come for-ward with supporting documentation to ex-plain the basis for the Executive Order.

The panel’s errors are many and obvi-ous. Had it applied the proper standard,the panel should have stopped here andissued the stay of the district court’s TRO.Instead, the panel opinion stands contraryto well-established separation-of-powersprinciples. We have honored those princi-ples in our prior decisions; the panel failedto observe them here. If for no otherreason, we should have gone en banc tovacate the panel’s opinion in order to keepour own decisions straight.

III

We are all acutely aware of the enor-mous controversy and chaos that attendedthe issuance of the Executive Order. Peo-ple contested the extent of the nationalsecurity interests at stake, and they debat-ed the value that the Executive Orderadded to our security against the real suf-fering of potential emigres. As tempting asit is to use the judicial power to balancethose competing interests as we see fit, wecannot let our personal inclinations getahead of important, overarching principlesabout who gets to make decisions in ourdemocracy. For better or worse, everyfour years we hold a contested presidentialelection. We have all found ourselves dis-appointed with the election results in oneelection cycle or another. But it is the bestof American traditions that we also under-stand and respect the consequences of ourelections. Even when we disagree with thejudgment of the political branches—andperhaps especially when we disagree—wehave to trust that the wisdom of the nationas a whole will prevail in the end.

Above all, in a democracy, we have theduty to preserve the liberty of the peopleby keeping the enormous powers of thenational government separated. We arejudges, not Platonic Guardians. It is ourduty to say what the law is, and the meta-


source of our law, the U.S. Constitution,commits the power to make foreign policy,including the decisions to permit or forbidentry into the United States, to the Presi-dent and Congress. We will yet regret nothaving taken this case en banc to keepthose lines of authority straight.

Finally, I wish to comment on the publicdiscourse that has surrounded these pro-ceedings. The panel addressed the govern-ment’s request for a stay under the worstconditions imaginable, including extraordi-narily compressed briefing and argumentschedules and the most intense publicscrutiny of our court that I can remember.Even as I dissent from our decision not tovacate the panel’s flawed opinion, I havethe greatest respect for my colleagues.The personal attacks on the distinguisheddistrict judge and our colleagues were outof all bounds of civic and persuasive dis-course—particularly when they came fromthe parties. It does no credit to the argu-ments of the parties to impugn the motivesor the competence of the members of thiscourt; ad hominem attacks are not a sub-stitute for effective advocacy. Such person-al attacks treat the court as though it weremerely a political forum in which bargain-ing, compromise, and even intimidation areacceptable principles. The courts of lawmust be more than that, or we are notgoverned by law at all.

I dissent, respectfully.

BEA, Circuit Judge, with whomKOZINSKI, CALLAHAN, and IKUTA,Circuit Judges, join, dissenting from thedenial of rehearing en banc:

I join Judge Bybee’s excellent dissentfrom the denial of rehearing en banc. Iwrite separately to emphasize a seriouserror in the panel’s conclusion that the dueprocess claims advanced by Washingtonand Minnesota (collectively, ‘‘the States’’)were likely to succeed on the merits.States may not sue the federal governmentto assert due process rights for them-selves, nor for their residents—much lessnon-resident aliens—under the FifthAmendment, because the States are notproper party plaintiffs.1 We should havetaken this case en banc to correct thiserror in the panel’s due process holdingand the several errors identified by JudgeBybee in his dissent.

The States are not proper party plain-tiffs to make claims under the Due ProcessClause, because they are simply not ‘‘per-sons’’ protected by the Fifth Amendment.2

See South Carolina v. Katzenbach, 383U.S. 301, 323–24, 86 S.Ct. 803, 15 L.Ed.2d769 (1966) (‘‘The word ‘person’ in the con-text of the Due Process Clause of the FifthAmendment cannot, by any reasonablemode of interpretation, be expanded toencompass the States of the Union, and toour knowledge this has never been doneby any court.’’);3 United States v. Thoms,

1. The panel denied the government’s motionfor a stay solely on due process grounds.Washington v. Trump, 847 F.3d 1151, 1164(9th Cir. 2017). It specifically avoided decid-ing the First Amendment claim based on reli-gious discrimination.

2. I agree with the panel that the States havealleged proprietary harms to their public uni-versities sufficient to establish Article IIIstanding. The universities have spent moneyfor procurement of visas for scholars, faculty,and students, which expenditures will bewasted if the visa holders are prevented from

attendance at the state schools. What theStates have not done, however, is establishthat they have rights under the Due ProcessClause of the Fifth Amendment to vindicatethose proprietary harms.

3. In Katzenbach, South Carolina sought ‘‘adeclaration that selected provisions of theVoting Rights Act of 1965 violate the FederalConstitution,’’ and ‘‘an injunction against en-forcement of [those] provisions by the Attor-ney General.’’ Katzenbach, 383 U.S. at 307, 86S.Ct. 803. South Carolina filed its case direct-ly in the Supreme Court, which had original


684 F.3d 893, 899 n.4 (9th Cir. 2012) (quot-ing Katzenbach, 383 U.S. at 323, 86 S.Ct.803); Premo v. Martin, 119 F.3d 764, 771(9th Cir. 1997) (‘‘Because the State is not a‘person’ for the purposes of the FifthAmendment, the State’s reliance on theDue Process Clause was misplaced.’’ (cit-ing Katzenbach, 383 U.S. at 323–24, 86S.Ct. 803)).

Perhaps to avoid this pitfall, the panelgoes one step further. It holds that, ‘‘[u]n-der the ‘third party standing’ doctrine,[the] injuries to the state universities givethe States standing to assert the rights ofthe students, scholars, and faculty affectedby the Executive Order.’’ Washington, 847F.3d at 1160. In taking this step, the panelignores direct, on-point Supreme Courtprecedent to the contrary.

The States may not sue the federal gov-ernment as parens patriae to protect theircitizens from constitutional violations al-leged to have been committed by the fed-eral government. See Katzenbach, 383 U.S.at 324, 86 S.Ct. 803 (‘‘Nor does a Statehave standing as the parent of its citizensto invoke these constitutional provisionsagainst the Federal Government, the ulti-mate parens patriae of every American

citizen.’’); Massachusetts v. Mellon, 262U.S. 447, 485–86, 43 S.Ct. 597, 67 L.Ed.1078 (1923) (‘‘While the state, under somecircumstances, may sue in that capacity forthe protection of its citizens, it is no part ofits duty or power to enforce their rights inrespect of their relations with the federalgovernment. In that field it is the UnitedStates, and not the state, which representsthem as parens patriae, when such repre-sentation becomes appropriate; and to theformer, and not to the latter, they mustlook for such protective measures as flowfrom that status.’’ (citing Missouri v. Illi-nois, 180 U.S. 208, 241, 21 S.Ct. 331, 45L.Ed. 497 (1901))); see also Erwin Cheme-rinsky, Federal Jurisdiction 123 (7th ed.2016) (‘‘One important limit on parens pat-riae standing of state and local govern-ments is that they may not sue the federalgovernment in this capacity, though theymay sue the federal government to protecttheir own sovereign or proprietary inter-ests.’’).

The panel avoids this precedent, andholds that the States may sue the federalgovernment on behalf of their residents’(and potential future residents’)4 constitu-

jurisdiction to hear the case. Id. The Courtdenied South Carolina’s request to enjoin theenforcement of the Voting Rights Act. In itsresponse to South Carolina’s claim that theVoting Rights Act denied South Carolina dueprocess, the Court held that states may notbring due process claims under the FifthAmendment because states are not personsprotected by the Fifth Amendment. Id. at 323–24, 86 S.Ct. 803.

4. The panel holds that the States may assert‘‘potential claims regarding possible due pro-cess rights of other persons,’’ including‘‘[visa] applicants who have a relationshipwith a U.S. resident or an institution thatmight have rights of its own to assert.’’ Wash-ington, 847 F.3d at 1166. The Supreme Courthas already explained that the States have norights of their own to assert under the FifthAmendment, and have no basis for asserting

the Fifth Amendment due process rights oftheir residents. In light of that precedent, Isee no reason why the States would be per-mitted to assert due process claims on behalfof foreign individuals who have not yet re-ceived a visa, and who do not yet reside in theStates that wish to assert claims on the indi-viduals’ behalves. The panel also does notexplain what procedures as to notice (reasonfor denial) or due process hearing (proof ofreasons) the federal government would needto provide non-resident visa applicants to sat-isfy due process upon the denial or suspen-sion of entry pursuant to 8 U.S.C. § 1182(f).Suppose, for example, an Iranian nationalapplies for a non-immigrant tourist visa onApril 1, and hostilities break out between theUnited States and Iran on April 10, one daybefore the Iranian national expected to re-ceive a visa. Is the Iranian national entitled tonotice that his visa will not be issued because


tional interests under the Fifth Amend-ment because the States have third-partystanding to do so.5 None of the precedentcited by the panel supports its assertion—which, by the way, was never advanced bythe States in their complaint, their re-sponse to the federal government’s emer-gency motion, or during oral argument—

that a state can evade the strictures ofKatzenbach and Mellon through third-par-ty standing doctrine. A closer look atthird-party standing doctrine reveals justthe opposite. See Kowalski v. Tesmer, 543U.S. 125, 129–30, 125 S.Ct. 564, 160L.Ed.2d 519 (2004) (‘‘[T]here may be cir-cumstances where it is necessary to grant

of the outbreak of hostilities and to a hearingto justify that the government’s denial doesnot violate the Iranian national’s due processrights? Before whom would that hearing beheld, where would it take place, and whatwould be the required proof? Could the Irani-an national file suit in a federal district courtto assert his ‘‘possible’’ due process rights?The panel invites litigation by visa applicantsand other non-resident foreign nationals toassert ‘‘potential claims regarding possibledue process rights.’’ Id. But, as Judge Bybeeshows with precision, no alien has a right toenter the United States; it is a privilege whichcan be withheld. See Landon v. Plasencia, 459U.S. 21, 32, 103 S.Ct. 321, 74 L.Ed.2d 21(1982) (‘‘This Court has long held that analien seeking initial admission to the UnitedStates requests a privilege and has no consti-tutional rights regarding his application, forthe power to admit or exclude aliens is asovereign prerogative.’’).

5. The States did not raise third-party standingas a basis to assert the due process rights oftheir residents. Instead, the States arguedthat, as parens patriae, they may bring dueprocess claims on behalf of their residents(and potential future residents), citing Mellon,262 U.S. at 481–82, 485, 43 S.Ct. 597 (1923),Alfred L. Snapp & Son, Inc. v. Puerto Rico,458 U.S. 592, 609, 102 S.Ct. 3260, 73 L.Ed.2d995 (1982), and Massachusetts v. EPA, 549U.S. 497, 516–21, 520 n.17, 127 S.Ct. 1438,167 L.Ed.2d 248 (2007). Not so. AlthoughMellon cites Missouri v. Holland, 252 U.S.416, 40 S.Ct. 382, 64 L.Ed. 641 (1920), for theproposition that a state may sue the federalgovernment to protect its own quasi-sovereigninterests, such as the right of a state to regu-late the taking of wild game within its bor-ders, Mellon, 262 U.S. at 482, 43 S.Ct. 597,Mellon also made clear that ‘‘it is no part of[a state’s] duty or power to enforce [its citi-zens’] rights in respect of their relations withthe federal government.’’ Id. at 485–86, 43

S.Ct. 597. In Snapp, Puerto Rico sued privateindividuals and companies engaged in the ap-ple industry in Virginia, alleging that thoseindividuals and companies violated federalstatutes when they allegedly discriminatedagainst qualified Puerto Rican farmworkers.The Fourth Circuit held that Puerto Rico, asparens patriae, could maintain its suit againstthe private defendants. The Supreme Courtaffirmed, and held that Puerto Rico could sue‘‘to secure the federally created interests of itsresidents against private defendants,’’ but alsonoted that states lack ‘‘standing as parenspatriae to bring an action against the FederalGovernment.’’ Snapp, 458 U.S. 592, 610 n.16,102 S.Ct. 3260, 73 L.Ed.2d 995 (emphasisadded). Finally, in Massachusetts v. EPA, theSupreme Court held that Massachusetts al-leged facts sufficient to establish standing—not to assert constitutional rights on behalf ofits residents, but to assert a statutory right onbehalf of the state’s own quasi-sovereign in-terests—to sue the Environmental ProtectionAgency (EPA). Massachusetts, 549 U.S. at517–21, 127 S.Ct. 1438. The Court held thatthe state was entitled to ‘‘special solicitude’’in the standing analysis because Congress ac-corded the states a procedural right to chal-lenge agency action unlawfully withheld, andbecause the state owned much of the territoryalleged to be affected by the EPA’s withhold-ing of agency action. Id. at 520, 127 S.Ct.1438. Here, neither the States nor the panelcite any congressional authorization for theStates to bring their claims. None of the casescited by the States or the panel supports atheory that a state, as parens patriae, may suethe federal government to assert the due pro-cess rights of its residents. The panel’s unin-vited leap to third-party standing completelyavoids the precedents actually cited by theStates, which more directly address the ques-tion whether states can sue the federal gov-ernment to assert constitutional claims onbehalf of their residents. The answer to thatquestion is ‘‘No.’’


a third party standing to assert the rightsof another. But we have limited this excep-tion by requiring a party seeking third-party standing make two additional show-ings. First, we have asked whether theparty asserting the right has a ‘close’ rela-tionship with the person who possesses theright. Second, we have considered whetherthere is a ‘hindrance’ to the possessor’sability to protect his own interests.’’ (quot-ing Powers v. Ohio, 499 U.S. 400, 411, 111S.Ct. 1364, 113 L.Ed.2d 411 (1991))). Evenif we assume a close relationship betweenthe States’ universities and their students,faculty, and scholars, the panel—and moreimportantly, the States—have not identi-fied any hindrance to first parties’ ‘‘abilityto protect [their] own interests’’ here. Id.;see also Louhghalam v. Trump, 230F.Supp.3d 26, 2017 WL 479779 (D. Mass.Feb. 3, 2017) (reviewing constitutionalclaims arising from Executive Order 13769brought by Iranian nationals who are em-ployed as Associate Professors at the Uni-versity of Massachusetts–Dartmouth). Thepanel’s conclusion that the States may as-sert the due process rights of their resi-dents (or potential future residents) underthird-party standing doctrine renders Kat-zenbach and Mellon meaningless.

To the lay person, our discussion ofthird-party standing doctrine may seempedantic and without recognition of theharm that could have resulted from thegrant of the federal government’s motionto stay the temporary restraining orderpending appeal. The important point isthis: The States may not sue the federalgovernment, either on their own behalf oron behalf of their citizens, to protect theirresidents’ due process rights under theFifth Amendment. Much less do the Stateshave third-party standing as to non-resi-dent aliens seeking entry into the country.Therefore, the panel erred when it con-

cluded that the federal government did notestablish a likelihood of success on themerits of the States’ due process claims—the only claims fully addressed by thepanel.

As the district court stated, but unfortu-nately failed adequately to apply in histemporary restraining order, ‘‘The work ofthe court is not to create policy or judgethe wisdom of any particular policy pro-moted by the other two branches. That isthe work of the legislative and executivebranches and of the citizens of this countrywho ultimately exercise democratic controlover those branches. The work of the Judi-ciary, and this court, is limited to ensuringthat the actions taken by the other twobranches comport with our country’s laws,and more importantly, our Constitution.’’Washington v. Trump, No. C17–0141–JLR, 2017 WL 462040, at *3 (W.D. Wash.Feb. 3, 2017). At a minimum, the federalgovernment established a likelihood of suc-cess on the merits that Executive Order13769 comports with our country’s lawsand our Constitution. The government’smotion for a stay of the temporary re-straining order should have been granted.Our court should have avoided the inclina-tion to rule based on the political head-winds of a particular moment in historyand taken this case en banc to correct thepanel’s significant errors.

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Documents

1168 858 FEDERAL REPORTER, 3d SERIES · 12/19/2017 · Fed. R. App. P. 35; Ninth Cir. R. 35–3; Ninth Cir. Gen. Order 5.1–5.5. Reconsider-ing a case before an en banc panel after