DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.
HAWAII, ET AL.
APPLICATION FOR STAY AND PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
cases involve challenges to Executive Order No. 13780,
Protecting the Nation From Foreign Terrorist Entry Into the
United States. The order alters practices concerning the
entry of foreign nationals into the United States by, among
other things, suspending entry of nationals from six
designated countries for 90 days. Respondents challenged the
order in two separate lawsuits. They obtained preliminary
injunctions barring enforcement of several of its provisions,
including the 90-day suspension of entry. The injunctions
were upheld in large measure by the Courts of Appeals.
Government filed separate petitions for certiorari, as well
as applications to stay the preliminary injunctions entered
by the lower courts. We grant the petitions for certiorari
and grant the stay applications in part.
January 27, 2017, President Donald J. Trump signed Executive
Order No. 13769, Protecting the Nation From Foreign Terrorist
Entry Into the United States. 82 Fed. Reg. 8977 (EO-1). EO-1
addressed policies and procedures relating to the entry of
foreign nationals into this country. Among other directives,
the order suspended entry of foreign nationals from seven
countries identified as presenting heightened terrorism
risks-Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen-for
90 days. §3(c). Executive officials were instructed to
review the adequacy of current practices relating to visa
adjudications during this 90-day period. §3(a). EO-1
also modified refugee policy, suspending the United States
Refugee Admissions Program (USRAP) for 120 days and reducing
the number of refugees eligible to be admitted to the United
States during fiscal year 2017. §§5(a), (d).
was immediately challenged in court. Just a week after the
order was issued, a Federal District Court entered a
nationwide temporary restraining order enjoining enforcement
of several of its key provisions. Washington v.
Trump, 2017 WL 462040 (WD Wash., Feb. 3, 2017). Six days
later, the Court of Appeals for the Ninth Circuit denied the
Government's emergency motion to stay the order pending
appeal. Washington v. Trump, 847 F.3d 1151 (2017).
Rather than continue to litigate EO-1, the Government
announced that it would revoke the order and issue a new one.
second order followed on March 6, 2017. See Protecting the
Nation From Foreign Terrorist Entry Into the United States,
Exec. Order No. 13780, 82 Fed. Reg. 13209 (EO-2). EO-2
describes "conditions in six of the . . . coun-
tries" as to which EO-1 had suspended entry, stating
that these conditions "demonstrate [that] nationals [of
those countries] continue to present heightened risks to the
security of the United States, " §l(e), and that
"some of those who have entered the United States
through our immigration system have proved to be threats to
our national security, " §l(h).
identified these concerns, EO-2 sets out a series of
directives patterned on those found in EO-1. Several are
relevant here. First, EO-2 directs the Secretary of Homeland
Security to conduct a global review to determine whether
foreign governments provide adequate information about
nationals applying for United States visas. §2(a). EO-2
directs the Secretary to report his findings to the President
within 20 days of the order's "effective date,
" after which time those nations identified as deficient
will be given 50 days to alter their practices.
EO-2 directs that entry of nationals from six of the seven
countries designated in EO-1-Iran, Libya, Somalia, Sudan,
Syria, and Yemen-be "suspended for 90 days from the
effective date" of the order. §2(c). EO-2 explains
that this pause is necessary to ensure that dangerous
individuals do not enter the United States while the
Executive is working to establish "adequate standards
... to prevent infiltration by foreign terrorists"; in
addition, suspending entry will "temporarily reduce
investigative burdens on agencies" during the
Secretary's 20-day review. Ibid. A separate
section provides for case-by-case waivers of the entry bar.
EO-2 suspends "decisions on applications for refugee
status" and "travel of refugees into the United
States under the USRAP" for 120 days following its
effective date. §6(a). During that period, the Secretary
of State is instructed to review the adequacy of USRAP
application and adjudication procedures and implement
whatever additional procedures are necessary "to ensure
that individuals seeking admission as refugees do not pose a
threat" to national security. Ibid.
citing the President's determination that "the entry
of more than 50, 000 refugees in fiscal year 2017 would be
detrimental to the interests of the United States, "
EO-2 "suspend[s] any entries in excess of that
number" for this fiscal year. §6(b).
§14 of EO-2 establishes the order's effective date:
March 16, 2017.
in these cases filed separate lawsuits challenging EO-2. As
relevant, they argued that the order violates the
Establishment Clause of the First Amendment because it was
motivated not by concerns pertaining to national security,
but by animus toward Islam. They further argued that EO-2
does not comply ...