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Doe v. Trump

United States Court of Appeals, Ninth Circuit

December 20, 2019

JOHN DOE #1; et al., Plaintiffs-Appellees,
v.
DONALD J. TRUMP, in his official capacity as President of the United States; et al., Defendants-Appellants.

          D.C. No. 3:19-cv-01743-SI District of Oregon, Portland

          Before: THOMAS, Chief Judge, BERZON and BRESS, Circuit Judges.

          ORDER

         The government requests an emergency temporary stay of the district court's order preliminarily enjoining Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System, pending consideration of the motion for a stay pending appeal. The government also seeks a stay of the preliminary injunction pending appeal. The plaintiffs oppose both motions.

         A temporary stay in this context (sometimes referred to as an administrative stay) is only intended to preserve the status quo until the substantive motion for a stay pending appeal can be considered on the merits, and does not constitute in any way a decision as to the merits of the motion for stay pending appeal.

         Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect. By this order we are expediting briefing and oral argument on the emergency motion and anticipate an expeditious issuance of a decision following argument.

         Any government reply to plaintiffs' opposition to the motion for stay pending appeal is due December 23, 2019.

         The parties are directed to appear for oral argument on the motion for stay pending appeal on Thursday, January 9, 2020, at 10:00 am in San Francisco, California. Each side will be allotted 20 minutes of argument time. The parties are encouraged to appear in person if possible. If any party wishes to appear by video, that party must notify Kwame Copeland, 415.355.7888, no later than Friday, January 3, 2020, and must coordinate with Mr. Copeland in making suitable arrangements for an appearance by video.

          The opening brief and excerpts of record are due January 2, 2020; the answering brief is due January 30, 2020 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 21 days after service of the answering brief. This case will be assigned to the next available oral argument panel for a decision on the merits of the appeal.

          BRESS, Circuit Judge, dissenting:

         Before it could take effect, a district court in Oregon enjoined a Presidential Proclamation that placed a suspension and certain limitations on the entry of immigrants whom the President has determined will burden the American healthcare system. The district court refused to stay its nationwide injunction, and the government has now sought a stay of the district court's order pending appeal, as well as a temporary stay pending this Court's ruling on the underlying stay motion. Only the latter request is before us now. I would grant the temporary stay and so respectfully dissent from its denial.

         Whatever one's views on the Presidential Proclamation as a matter of policy, the district court's decision is clearly wrong as a matter of law. In the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine-among the most brittle limbs in American constitutional law-and a reading of 8 U.S.C. § 1182(f) that the Supreme Court expressly rejected in Trump v. Hawaii, 138 S.Ct. 2392 (2018). The district court's extraordinary injunction ignores governing precedent, invents unjustified restrictions on the political branches, and inserts the courts into the President's well- established constitutional and statutory prerogative to place limits on persons entering this country. The Proclamation concerns matters of great consequence and is understandably important to many people, but the law prevented the district court from doing what it did here.

         Today's order is not a ruling on the government's underlying motion for a stay pending appeal, which I hope will ultimately be granted. But given the clear error below and irreparable resulting harms, a temporary stay is warranted. See 9th Cir. R. 27-3. We have granted such stays before, including in another case today. E.g., Al Otro Lado, Inc. v. Wolf, No. 19-56417 (9th Cir. Dec. 20, 2019); East Bay Sanctuary Covenant v. Barr, No. 19-16487 (9th Cir. Sept. 10, 2019), ECF No. 45; Innovation Law Lab v. Nielsen, No. 19-15716 (9th Cir. Apr. 12, 2019), ECF No. 6. We should have issued a temporary stay here as well. I therefore respectfully dissent.

         I

         This case arises from Presidential Proclamation No. 9945, entitled Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System, in Order To Protect the Availability of Healthcare Benefits for Americans. Pres. Proc. No. 9945, 84 Fed. Reg. 53, 991 (2019). Citing 8 U.S.C. ยง 1182(f) and his authority under the Constitution, the President suspended and limited the entry of certain immigrants who cannot show that, within 30 days of arriving in the United States, they "will be covered by ...


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