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Trump v. International Refugee Assistance Project

United States Supreme Court

June 26, 2017

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.
v.
INTERNATIONAL REFUGEE ASSISTANCE PROJECT, ET AL. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.
v.
HAWAII, ET AL.

         ON APPLICATION FOR STAY AND PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

          PER CURIAM.

         These cases involve challenges to Executive Order No. 13780, Protecting the Nation From Foreign Terrorist Entry Into the United States. The order alters practices concerning the entry of foreign nationals into the United States by, among other things, suspending entry of 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.

         The 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.

         I

         A

         On January 27, 2017, President Donald J. Trump signed Executive Order No. 13769, Protecting the Nation From Foreign Terrorist Entry Into the United States. 82 Fed. Reg. 8977 (EO-1). EO-1 addressed policies and 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).

         EO-1 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.

         A 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).

         Having identified these concerns, EO-2 sets out a series of directives patterned on those found in EO-1. Several are relevant here. First, EO-2 directs the Secretary of Homeland Security to conduct a global review to 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. §§2(b), (d)-(e).

         Second, EO-2 directs that entry of nationals from six of the seven countries designated in EO-1-Iran, Libya, Somalia, Sudan, Syria, and Yemen-be "suspended for 90 days from the effective date" of the order. §2(c). EO-2 explains that this pause is necessary to ensure that 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. §3(c).

         Third, EO-2 suspends "decisions on applications for refugee status" and "travel of refugees into the United States under the USRAP" for 120 days following its 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.

         Fourth, citing the President's determination that "the entry of more than 50, 000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, " EO-2 "suspend[s] any entries in excess of that number" for this fiscal year. §6(b).

         Finally, §14 of EO-2 establishes the order's effective date: March 16, 2017.

         B

         Respondents in these cases filed separate lawsuits challenging EO-2. As relevant, they argued that the order violates the Establishment Clause of the First 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 ...


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