State of Hawaii; Ismail Elshikh; John Does , 1 & 2; Muslim Association of Hawaii, Inc . v. Donald J. Trump

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
S TATE OF HAWAII; ISMAIL E LSHIKH;
J OHN DOES , 1 & 2; M USLIM
ASSOCIATION OF HAWAII, INC .,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP , in his official
capacity as President of the United
States; U.S. DEPARTMENT OF
HOMELAND S ECURITY; KIRSTJEN M.
N IELSEN, in her official capacity as
Secretary of Homeland Security;
U.S. DEPARTMENT OF S TATE; R EX
W. TILLERSON, in his official
capacity as Secretary of State;
UNITED S TATES OF A MERICA,
Defendants-Appellants.
No. 17-17168
D.C. No.
1:17-cv-00050-
DKW-KSC
OPINION
Appeal from the United States District Court
for the District of Hawaii
Derrick Kahala Watson, District Judge, Presiding
Argued and Submitted December 6, 2017
Seattle, Washington
Filed December 22 ,2017

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2 HAWAII V. TRUMP
Before: Michael Daly Hawkins, Ronald M. Gould,
and Richard A. Paez, Circuit Judges.
Per Curiam Opinion
COUNSEL
Hashim M. Mooppan (argued), Deputy Assistant Attorney
General; Sharon Swingle, H. Thomas Byron III, and Lowell
V. Sturgill Jr., Appellate Staff; Chad A. Readler, Acting
Assistant Attorney General; Jeffrey B. Wall and Edwin S.
Kneedler, Deputy Solicitors General; Noel J. Francisco,
Solicitor General; Civil Division, United States Department
of Justice, Washington, D.C.; for Defendants-Appellants.
Mitchell P. Reich (argued), Neal Kumar Katyal (argued),
Colleen Roh Sinzdak, Elizabeth Hagerty, Yuri S. Fuchs,
Sundeep Iyer, and Reedy C. Swanson, Hogan Lovells US
LLP, Washington, D.C.; Thomas P. Schmidt, Hogan Lovells
US LLP, New York, New York; Sara Solow and Alexander
B. Bowerman, Hogan Lovells US LLP, Philadelphia,
Pennsylvania; Deirdre Marie-Iha, Donna H. Kalama,
Kimberly T. Guidry, Robert T. Nakatsuji, Kaliko‘Onalani D.
Fernandes, and Kevin M. Richardson, Deputy Attorneys
General; Clyde J. Wadsworth, Solicitor General; Douglas S.
Chin, Attorney General; Department of the Attorney
General, Honolulu, Hawaii; for Plaintiffs-Appellees.
Eric T. Schneiderman, Attorney General; Barbara D.
Underwood, Solicitor General; Anisha S. Dasgupta, Deputy
Solicitor General; Zainab A. Chaudhry, Assistant Solicitor
General of Counsel; Office of the Attorney General, New
York, New York; Lisa Madigan, Attorney General; David L.
Franklin, Solicitor General; Office of the Attorney General,

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HAWAII V. TRUMP 3
Chicago, Illinois; Xavier Becerra, Attorney General, Office
of the Attorney General, Sacramento, California; George
Jepsen, Attorney General, Office of the Attorney General,
Hartford, Connecticut; Matthew P. Denn, Attorney General,
Delaware Department of Justice, Wilmington, Delaware;
Thomas J. Miller, Attorney General, Office of the Attorney
General, Des Moines, Iowa; Janet T. Mills, Attorney
General, Office of the Attorney General, Augusta, Maine;
Brian E. Frosh, Attorney General, Attorney General’s
Office, Baltimore, Maryland; Maura Healey, Attorney
General, Attorney General’s Office, Boston, Massachusetts;
Hector Balderas, Attorney General, Office of the Attorney
General, Santa Fe, New Mexico; Ellen F. Rosenblum,
Attorney General, Office of the Attorney General, Salem,
Oregon; Peter F. Kilmartin, Attorney General, Office of the
Attorney General, Providence, Rhode Island; Thomas J.
Donovan Jr., Attorney General, Office of the Attorney
General, Montpelier, Vermont; Mark R. Herring, Attorney
General, Office of the Attorney General, Richmond,
Virginia; Robert W. Ferguson, Attorney General, Office of
the Attorney General, Seattle, Washington; Karl A. Racine,
Attorney General, Office of the Attorney General,
Washington, D.C.; for Amici Curiae States of New York,
Illinois, California, Connecticut, Delaware, Iowa, Maine,
Maryland, Massachusetts, New Mexico, Oregon, Rhode
Island, Vermont, and Washington, the Commonwealth of
Virginia, and the District of Columbia.
Scott A. Keller, Solicitor General; J. Campbell Barker,
Deputy Solicitor General; Ari Cuenin, Assistant Solicitor
General; Ken Paxton, Attorney General; Jeffrey C. Mateer,
First Assistant Attorney General; Office of the Attorney
General, Austin, Texas; for Amici Curiae States of Texas,
Alabama, Arizona, Arkansas, Florida, Kansas, Louisiana,

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4 HAWAII V. TRUMP
Missouri, Ohio, Oklahoma, South Carolina, and West
Virginia.
Richard D. Bernstein, Willkie Farr & Gallagher LLP,
Washington, D.C., for Amicus Curiae T.A., a U.S. Resident
of Yemeni Descent.
Amir H. Ali, Washington, D.C., as and for Amicus Curiae
Roderick & Solange MacArthur Justice Center.
Nicole G. Berner, Deborah L. Smith, and Leo Gertner,
Service Employees International Union, Washington, D.C.;
Judith Rivlin, American Federation of State, County and
Municipal Employees, Washington, D.C.; David J. Strom,
American Federation of Teachers, AFL-CIO, Washington,
D.C.; Jody Calemine, Communications Workers of
America, Washington, D.C.; Niraj R. Ganatra and Ava
Barbour; International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America; Detroit, Michigan; Mario Martínez, Martínez
Aguilasocho & Lynch APLC, Bakersfield, California;
Nicholas Clark, United Food and Commercial Workers,
Washington, D.C.; for Amici Curiae International Labor
Organizations.
Lynne Bernabei and Alan R. Kabat, Bernabei & Kabat
PLLC, Washington, D.C., for Amici Curiae Civil Rights
Organizations.
Aaron X. Fellmeth, Sandra Day O’Connor College of Law,
Arizona State University, Phoenix, Arizona; Joseph M.
McMillan and Michelle L. Maley, Perkins Coie LLP,
Seattle, Washington; for Amici Curiae International Law
Scholars and Nongovernmental Organizations.

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HAWAII V. TRUMP 5
Benjamin G. Schatz, Amy Briggs, John W. McGuinness,
Sirena Castillo, Matthew Bottomly, Olufunmilayo Showole,
Ketakee Kane, and Eve Torres, Manatt Phelps & Phillips
LLP, Los Angeles, California, for Amici Curiae Muslim
Justice League, Muslim Public Affairs Council, and Council
of American-Islamic Relations California.
Marc A. Hearron, Sophia M. Brill, and Sandeep N.
Nandivada, Morrison & Foerster LLP, Washington, D.C.;
Jennifer K. Brown and Amanda Aikman, Morrison &
Foerster LLP, New York, New York; Purvi G. Patel,
Morrison & Foerster LLP, Los Angeles, California; for
Amici Curiae Interfaith Group of Religious and
Interreligious Organizations and Clergy Members.
Fatma Marouf, Fort Worth, Texas; Sabrineh Ardalan, Philip
L. Torrey, Nathan MacKenzie, Dalia Deak, Niku Jafarnia,
and Rachel Kroll, Cambridge, Massachusetts; Geoffrey
Hoffman, Houston, Texas; Karla McKanders, Nashville,
Tennessee; for Amici Curiae Immigration Law Scholars on
Statutory Claims.
Donald Francis Donovan, David W. Rivkin, Jennifer R.
Cowan, and Elizabeth Nielsen, Debevoise & Plimpton LLP,
New York, New York; Ilana H. Eisenstein, John M. Leitner,
and Ryan S. Macpherson, DLA Piper LLP (US),
Philadelphia, Pennsylvania; for Amicus Curiae International
Bar Association’s Human Rights Institute.
Elizabeth B. Wydra, Brianne J. Gorod, and David H. Gans,
Constitutional Accountability Center, Washington, D.C.;
Raymond H. Brescia, Albany, New York; Peter Karanjia and
Geoffrey Brounell, Davis Wright Tremaine LLP,
Washington, D.C.; Victor A. Kovner, Davis Wright

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Tremaine LLP, New York, New York; for Amici Curiae
Members of Congress.
Christopher J. Hajec, Julie B. Axelrod, Michael M.
Hethmon, Elizabeth A. Hohenstein, and Mark S. Venezia,
Washington, D.C., as and for Amicus Curiae Immigration
Reform Law Institute.
Cameron C. Russell, David Y. Livshiz, and Karen Wiswall,
Freshfields Bruckhaus & Deringer US LLP, New York, New
York; Daniel Braun and Peter Jaffe, Freshfields Bruckhaus
& Deringer US LLP, Washington, D.C.; for Amicus Curiae
The Cato Institute.
Meir Feder, Rasha Gerges Shields, and Rajeev Mittreja,
Jones Day, New York, New York; Catherine Y. Kim, New
York, New York; Judith Resnik, New Haven, Connecticut;
Burt Neuborne, New York, New York; Lucas Guttentag,
Palo Alto, California; for Amici Curiae Professors of Federal
Courts Jurisprudence, Constitutional Law, and Immigration
Law.
Lindsay C. Harrison, Thomas J. Perrilli, and Tassity S.
Johnson, Jenner & Block LLP, Washington, D.C.; for Amici
Curiae Boston University, Brandeis University, Brown
University, Bucknell University, Carnegie Mellon
University, Case Western Reserve University, Columbia
University, Cornell University, Dartmouth College, Duke
University, Emory University, George Washington
University, Georgetown University, Harvard University,
Johns Hopkins University, Massachusetts Institute of
Technology, Middlebury College, Northeastern University,
Northwestern University, Princeton University, Rice
University, Stanford University, Tufts University,
University of Chicago, University of Michigan, University

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HAWAII V. TRUMP 7
of Pennsylvania, University of Southern California,
Vanderbilt University, Washington University, Worcester
Polytechnic Institute, and Yale University.
Benna Ruth Solomon, Deputy Corporation Counsel; Edward
N. Siskel, Corporation Counsel; Andrew W. Worseck, Chief
Assistant Corporation Counsel; Carl Newman, Sara K.
Hornstra, and Jonathon D. Byrer, Assistant Corporation
Counsel; Department of Law, Chicago, Illinois; Nick
Kahlon, Riley Safer Holmes & Cancila LLP, Chicago,
Illinois; Ryan P. Poscablo, Brian Neff, and Eliberty Lopez,
Riley Safer Holmes & Cancila LLP, New York, New York;
Michael N. Feuer, Los Angeles City Attorney, Los Angeles,
California; Zachary W. Carter, Corporation Counsel, New
York Law Department, New York, New York; Sozi Pedro
Tulante, City Solicitor, Law Department, Philadelphia,
Pennsylvania; John Danial Reaves, Washington, D.C.; for
Amici Curiae Chicago, Los Angeles, New York,
Philadelphia, and other Cities and Counties, joined by the
U.S. Conference of Mayors.
Richard B. Katskee, Eric Rothschild, and Kelly M. Percival,
Americans United for Separation of Church and State,
Washington, D.C.; Elliot M. Mincberg and Diane Laviolette,
People for the American Way Foundation, Washington,
D.C.; Gillian B. Gillers, Kristi L. Graunke, and Naomi R.
Tsu, Southern Poverty Law Center, Decatur, Georgia; Susan
L. Sommer, Lambda Legal Defense and Education Fund
Inc., New York, New York; Camilla B. Taylor, Lambda
Legal Defense and Education Fund Inc., Chicago, Illinois;
Sharon M. McGowan, Lambda Legal Defense and
Education Fund Inc., Washington, D.C.; Jennifer C. Pizer,
Lamba Legal Defense and Education Fund Inc., Los
Angeles, California; for Amici Curiae Members of the
Clergy, Americans United for Separate of Church and State,

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8 HAWAII V. TRUMP
Bend the Arc, A Jewish Partnership for Justice, Central
Conference of American Rabbis, Lambda Legal Defense and
Education Fund Inc., People for the American Way
Foundation, Riverside Church in the City of New York,
Southern Poverty Law Center, Union for Reform Judaism,
and Women of Reform Judaism.
Andrew J. Pincus, Paul W. Hughes, and John T. Lewis,
Mayer Brown LLP, Washington, D.C., for Amici Curiae
Technology Companies.
Pratik A. Shah and Martine E. Cicconi, Washington, D.C.;
Robert S. Chang and Lorraine K. Bannai, Ronald A.
Peterson Law Clinic, Seattle University School of Law,
Seattle, Washington; Eric Yamamoto, Fred T. Korematsu
Professor of Law and Social Justice, William S. Richardson
School of Law, University of Hawaii, Honolulu, Hawaii;
Robert L. Rusky, San Francisco, California; Dale Minami
and Donald K. Tamaki, Minami Tamaki LLP, San
Francisco, California; Peter Irons, Director Emeritus, Earl
Warren Bill of Rights Project, University of California at
San Diego, San Diego, California; Leigh-Ann K. Miyasato,
Honolulu, Hawaii; Rodney L. Kawakami, Seattle,
Washington; Robert A. Johnson and Alice Hsu, Akin Gump
Strauss Hauer & Feld LLP, New York, New York; Jessica
M. Weisel, Akin Gump Strauss Hauer & Feld LLP, Los
Angeles, California; for Amici Curiae Karen Korematsu, Jay
Hirabayashi, Holly Yasui, The Fred T. Korematsu Center for
Law and Equality, Civil Rights Organizations, and National
Bar Associations of Color.
Matthew E. Sloan, Richard A. Schwartz, Allison B.
Holcombe, Alyssa J. Clover, and Brittany Ellenberg,
Skadden Arps Slate Meagher & Flom LLP, Los Angeles,
California; Eric J. Gorman and Jennifer H. Berman, Skadden

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HAWAII V. TRUMP 9
Arps Slate Meagher & Flom LLP, Chicago, Illinois; Noelle
M. Reed, Sarah Grossnickle, and Jonathan Fombonne,
Skadden Arps Slate Meagher & Flom LLP, Houston, Texas;
Joseph M. Sandman, Skadden Arps Slate Meagher & Flom
LLP, Washington, D.C.; Aaron Morris, Immigration
Equality, New York, New York; Virginia M. Goggin, New
York City Gay and Lesbian Anti-Violence Project, New
York, New York; Glenn Magpantay, The National Queer
Asian Pacific Islander Alliance, New York, New York; for
Amici Curiae Immigration Equality, New York City Gay
and Lesbian Anti-Violence Project, LGBT Bar Association
of Los Angeles, LGBT Bar Association of Greater New
York, Lesbian and Gay Bar Association of Chicago, GLBTQ
Legal Advocates & Defenders, and Bay Area Lawyers for
Individual Freedom.
Alan E. Schoenfeld and Scott McAbee, Wilmer Cutler
Pickering Hale and Dorr LLP, New York, New York; Peter
Margulies, Roger Williams University School of Law,
Bristol, Rhode Island; for Amici Curiae Scholars of
Immigration Law.
Dan Jackson, John W. Keker, and R. Adam Lauridsen,
Keker Van Nest & Peters LLP, San Francisco, California,
for Amicus Curiae Khizr Khan.
Brett R. Tobin, Goodsill Anderson Quinn & Stifel,
Honolulu, Hawaii; Michael B. Keating, Kristyn M. Defilipp,
Christopher E. Hart, and Daniel L. McFadden, Foley Hoag
LLP, Boston, Massachusetts; for Amicus Curiae
Massachusetts Technology Leadership Council Inc.
Robert A. Wiygul and Mark A. Aronchick, Hangley
Aronchick Segal Pudlin & Schiller, Philadelphia,

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10 HAWAII V. TRUMP
Pennsylvania, for Amici Curiae Immigration, Family, and
Constitutional Law Professors.
James W. Kim and Andrew J. Genz, McDermott Will &
Emery LLP, Washington, D.C.; Tina R. Matsuoka, Navdeep
Singh, Meredith S.H. Higashi, Rachana Pathak, and Albert
Giang, National Asian Pacific American Bar Association,
Washington, D.C.; for Amicus Curiae National Asian
Pacific American Bar Association.
Herbert W. Titus, William J. Olson, Robert J. Olson, and
Jeremiah L. Morgan, William J. Olson P.C., Vienna,
Virginia; Joseph W. Miller, Fairbanks, Alaska; for Amici
Curiae Citizens United, Citizens United Foundation,
Conservative Legal Defense and Education Fund, U.S.
Justice Foundation, Gun Owners Foundation, Gun Owners
of America Inc., Public Advocate of the United States,
Restoring Liberty Action Committee, English First, English
First Foundation, and Policy Analysis Center.
Yolanda C. Rondon, Samer E. Khalaf, and Abed A. Ayoub,
Washington, D.C., as and for Amicus Curiae American-
Arab Anti-Discrimination Committee.
OPINION
PER CURIAM:
For the third time, we are called upon to assess the
legality of the President’s efforts to bar over 150 million
nationals of six Muslim-majority countries from entering the
United States or being issued immigrant visas that they
would ordinarily be qualified to receive. To do so, we must
consider the statutory and constitutional limits of the

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HAWAII V. TRUMP 11
President’s power to curtail entry of foreign nationals in this
appeal of the district court’s order preliminarily enjoining
portions of § 2 of Proclamation 9645 entitled “Enhancing
Vetting Capabilities and Processes for Detecting Attempted
Entry Into the United States by Terrorists or Other Public-
Safety Threats” (the “Proclamation”).
The Proclamation, like its predecessor executive orders,
relies on the premise that the Immigration and Nationality
Act (“INA”) vested the President with broad powers to
regulate the entry of aliens. Those powers, however, are not
without limit. We conclude that the President’s issuance of
the Proclamation once again exceeds the scope of his
delegated authority. The Government’s interpretation of 8
U.S.C. § 1182(f) not only upends the carefully crafted
immigration scheme Congress has embodied in the INA, but
it deviates from the text of the statute, legislative history, and
prior executive practice as well. Further, the President did
not satisfy the critical prerequisite Congress attached to his
suspension authority: Before blocking entry, he must first
make a legally sufficient finding that the entry of the
specified individuals would be “detrimental to the interests
of the United States.” The Proclamation once again conflicts
with the INA’s prohibition on nationality-based
discrimination in the issuance of immigrant visas. Lastly,
the President is without a separate source of constitutional
authority to issue the Proclamation.
On these statutory bases, we affirm the district court’s
order enjoining enforcement of the Proclamation’s §§ 2(a),
(b), (c), (e), (g), and (h). We limit the scope of the
preliminary injunction, however, to foreign nationals who
have a bona fide relationship with a person or entity in the
United States.

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12 HAWAII V. TRUMP
I. Background1
A. Prior Executive Orders and Initial Litigation
On January 27, 2017, one week after his inauguration,
President Donald J. Trump signed an Executive Order
entitled “Protecting the Nation From Foreign Terrorist Entry
into the United States.” Exec. Order 13,769, 82 Fed. Reg.
8977 (Jan. 27, 2017) (“EO-1”). EO-1’s stated purpose was
to “protect the American people from terrorist attacks by
foreign nationals admitted to the United States.” Id. EO-1
took effect immediately and was challenged in several
venues shortly after it was issued. On February 3, 2017, a
federal district court in the State of Washington enjoined the
enforcement of EO-1. See Washington v. Trump, No. C17-
0141JLR, 2017 WL 462040 (W.D. Wash. Feb. 3, 2017).
The Government filed an emergency motion seeking a stay
of the injunction, which we denied. See Washington v.
Trump, 847 F.3d 1151, 1161–64 (9th Cir. 2017) (per
curiam), reh’g en banc denied, 853 F.3d 933 (9th Cir. 2017).
The Government later voluntarily dismissed its appeal of the
EO-1 injunction.
On March 6, 2017, the President issued Executive Order
13,780 (“EO-2”), which was given the same title as EO-1
and was set to take effect on March 16, 2017. 82 Fed. Reg.
13,209 (Mar. 6, 2017). EO-2 directed the Secretary of
Homeland Security to conduct a global review to determine
whether foreign governments were providing adequate
information about their nationals seeking entry into the
1 Portions of the background section have been drawn from the
district court’s order below. See Hawai’i v. Trump, No. CV 17-00050
DKW-KSC, 2017 WL 4639560, at *1–4 (D. Haw. Oct. 17, 2017)
(“Hawai’i TRO”).

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HAWAII V. TRUMP 13
United States. See EO-2 § 2(a). EO-2 also directed the
Secretary of Homeland Security to report those findings to
the President; following the Secretary’s report, nations
identified as providing inadequate information were to be
given an opportunity to alter their practices before the
Secretary would recommend entry restrictions for nationals
of noncompliant countries. Id. §§ 2(b), (d)–(f).
During this global review, EO-2 imposed a 90-day
suspension on the entry of certain foreign nationals from six
Muslim-majority countries: Iran, Libya, Somalia, Sudan,
Syria, and Yemen. Id. § 2(c). That 90-day suspension was
challenged in multiple courts and was preliminarily enjoined
by federal district courts in Hawai‘i and Maryland. See
Hawaiʻi v. Trump, 245 F. Supp. 3d 1227 (D. Haw. 2017);
Int’l Refugee Assistance Project (“IRAP”) v. Trump, 241 F.
Supp. 3d 539 (D. Md. 2017). Those injunctions were
affirmed by the Ninth and Fourth Circuits, respectively. See
Hawai‘i v. Trump (Hawai‘i I), 859 F.3d 741 (9th Cir. 2017)
(per curiam); IRAP v. Trump, 857 F.3d 554 (4th Cir. 2017)
(en banc), as amended (May 31, 2017). The Supreme Court
granted a writ of certiorari in both cases and left the
injunctions in place pending its review, except as to foreign
nationals who lacked a “credible claim of a bona fide
relationship with a person or entity in the United States.”
Trump v. IRAP, 137 S. Ct. 2080, 2088 (2017).
On September 24, 2017, the President issued the
Proclamation, which indefinitely suspends immigration by
nationals of seven countries and imposes restrictions on the
issuance of certain nonimmigrant visas for nationals of eight
countries. 82 Fed. Reg. 45,161, 45,164–67 (Sept. 24, 2017).
The entry restrictions were immediately effective for foreign
nationals who 1) were subject to EO-2’s restrictions, and
2) lack a credible claim of a bona fide relationship with a

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14 HAWAII V. TRUMP
person or entity in the United States. Id. at 45,171. For all
other affected persons, the Proclamation was slated to take
effect on October 18, 2017. Id. On October 10, 2017, the
Supreme Court vacated the Fourth Circuit’s opinion in IRAP
v. Trump as moot. See Trump v. IRAP, No. 16-1436, — S.
Ct. —, 2017 WL 4518553 (U.S. Oct. 10, 2017). On October
24, 2017, the Supreme Court vacated our opinion in Hawai‘i
I on the same grounds. See Trump v. Hawai‘i, No. 16-1540,
— S. Ct. —, 2017 WL 4782860 (U.S. Oct. 24, 2017). In
vacating our prior decision as moot, the Supreme Court
explicitly noted that it expressed no view on the merits of the
case. See id.
B. Plaintiffs’ Third Amended Complaint
On October 10, 2017, Plaintiffs sought to amend their
complaint to include allegations related to the Proclamation.2
The third amended complaint includes statutory claims for
violations of the INA, the Religious Freedom Restoration
Act, and the Administrative Procedure Act, as well as
constitutional claims for violations of the Establishment and
Free Exercise Clauses of the First Amendment and the equal
protection guarantees of the Fifth Amendment’s Due
Process Clause. Plaintiffs also moved for a temporary
restraining order; after expedited briefing, the district court
granted the motion on October 17, 2017. Hawai’i TRO,
2017 WL 4639560, at *1. Relying on our now-vacated
opinion in Hawai‘i I, the district court found that the
Proclamation suffered from the same deficiencies as EO-2.
Id. at *1, *9–13. At the parties’ request, the district court
2 Plaintiffs challenge only the restrictions imposed on the six
Muslim-majority countries affected by the Proclamation, and do not seek
to enjoin the Proclamation as it pertains to nationals of North Korea or
Venezuela. Hawai’i TRO, 2017 WL 4639560, at *4 n.10.

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HAWAII V. TRUMP 15
converted the temporary restraining order into a preliminary
injunction on October 20, 2017, rendering it an appealable
order. Hawai’i v. Trump, No. CV 17-00050 DKW-KSC (D.
Haw. Oct. 20, 2017), ECF No. 390 (order entering
preliminary injunction).
The Government timely appealed. During the pendency
of this appeal, we partially stayed the district court’s
preliminary injunction “except as to foreign nationals who
have a credible claim of a bona fide relationship with a
person or entity in the United States.” Hawai‘i v. Trump,
No. 17-17168, 2017 WL 5343014 (9th Cir. Nov. 13, 2017).
On December 4, 2017, the Supreme Court granted the
Government’s request for a complete stay pending review of
the district court’s preliminary injunction. Trump v.
Hawai‘i, No. 17A550, — S. Ct. — (Dec. 4, 2017).
C. The Proclamation
The Proclamation derives its purpose from the
President’s belief that he “must act to protect the security and
interests of the United States.” 82 Fed. Reg. at 45,161. In
furtherance of this goal, the Proclamation imposes indefinite
and significant restrictions and limitations on entry of
nationals from eight countries whose information-sharing
and identity-management protocols have been deemed
“inadequate.” Id. at 45,162–67. The Proclamation notes that
screening and vetting protocols and procedures play a
critical role in preventing terrorist attacks and other public
safety threats by enhancing the Government’s ability to
“detect foreign nationals who may commit, aid, or support
acts of terrorism.” Id. at 45,162. Thus, the Proclamation
concludes, “absent the measures set forth in th[e]
proclamation, the immigrant and nonimmigrant entry into
the United States of persons described in § 2 of th[e]

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16 HAWAII V. TRUMP
proclamation [will] be detrimental to the interests of the
United States.” Id. at 45,161–62.
The President selected eight countries for inclusion in the
Proclamation based on a “worldwide review” conducted
under the orders of EO-2. Id. at 45,161, 45,163–64. As part
of that review, the Secretary of the Department of Homeland
Security established global requirements for information
sharing “in support of immigration screening and vetting”
that included a comprehensive set of criteria on the
information-sharing practices, policies, and capabilities of
foreign governments. Id. at 45,161–63. The Secretary of
State then “engaged with the countries reviewed in an effort
to address deficiencies and achieve improvements.” Id. at
45,161. The Secretary of Homeland Security, after
consultation with the Secretary of State and the Attorney
General, ultimately identified 16 countries as “inadequate”
based on “an analysis of their identity-management
protocols, information-sharing practices, and risk factors.”
Id. at 45,163. An additional 31 countries were deemed “at
risk” of becoming “inadequate.” Id.
Countries were classified as “inadequate” based on
whether they met the “baseline” developed by the Secretary
of Homeland Security, in consultation with the Secretary of
State and the Director of National Intelligence. Id. at 45,162.
The baseline incorporated three categories of criteria:
1) identity-management information; 2) national security
and public-safety information; and 3) national security and
public-safety risk assessment. Id. Identity-management
information ensures that foreign nationals seeking to enter
the United States are who they claim to be. Id. This category
“focuses on the integrity of documents required for travel to
the United States,” including whether the country issues
passports with embedded data to confirm identity, reports

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HAWAII V. TRUMP 17
lost and stolen passports, and provides additional identity-
related information when requested. Id. National security
and public-safety information includes whether the country
“makes available, directly or indirectly, known or suspected
terrorist and criminal-history information upon request,”
whether it provides identity document exemplars, and
whether the country “impedes the United States
Government’s receipt of information about passengers and
crew traveling to the United States.” Id. Finally, national
security and public-safety risk assessment focuses on
whether the country is “a known or potential terrorist safe
haven,” whether the country participates in the Visa Waiver
Program, and whether the country “regularly fails to receive
its nationals” following their removal from the United
States. Id. at 45,162–63.
After a “50-day engagement period to encourage all
foreign governments . . . to improve their performance,” the
Secretary of Homeland Security ultimately determined that
Chad, Iran, Libya, North Korea, Syria, Venezuela, and
Yemen continued to be “inadequate” based on their identity-
management protocols, information-sharing practices, and
risk factors.3 Id. at 45,163. The Secretary of Homeland
Security also determined that Iraq did not meet the baseline
requirements, but concluded that entry restrictions and
limitations were not warranted because of the “close
cooperative relationship between the United States and the
democratically elected government of Iraq, the strong United
3 The Proclamation does not include the other thirty-nine countries
deemed either “inadequate” or “at risk” of becoming “inadequate.” See
82 Fed. Reg. at 45,163. As the district court noted, “the explanation for
how the Administration settled on the list of eight countries is obscured.”
Hawaiʻi TRO, 2017 WL 4639560, at *11 n.16. This is due, in large part,
to the fact that no court has been able to consider—or even view—the
DHS report in question.

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States diplomatic presence in Iraq, the significant presence
of United States forces in Iraq, and Iraq’s commitment to
combating the Islamic State of Iraq and Syria (ISIS).” Id.
On September 15, 2017, the Secretary of Homeland
Security submitted a report to the President recommending
entry restrictions for nationals from seven countries
“determined to be ‘inadequate’ in providing such [requested]
information and in light of the other factors discussed in the
report.” Id. After consultation with “appropriate Assistants
to the President and members of the Cabinet, including the
Secretaries of State, Defense, and Homeland Security, and
the Attorney General” and “accounting for the foreign
policy, national security, and counterterrorism objectives of
the United States,” the President decided to “restrict and
limit the entry of nationals of 7 countries found to be
‘inadequate’”: Chad, Iran, Libya, North Korea, Syria,
Venezuela, and Yemen. Id. at 45,164. And although
Somalia “generally satisfies” the information-sharing
requirements of the baseline, the President also imposed
entry restrictions and limitations on Somalia nationals
because of “its government’s inability to effectively and
consistently cooperate, combined with the terrorist threat
that emanates from its territory.” Id. The President
restricted entry of all immigrants from seven of the eight
countries, and adopted “a more tailored approach” to the
entry of nonimmigrants. Id. at 45,164–65.
Section 2’s challenged country restrictions and proffered
rationales are as follows:
Chadian nationals may not enter as immigrants or
nonimmigrants on business, tourist, or business/tourist visas
because, although Chad is “an important and valuable
counterterrorism partner of the United States, and . . . . has
shown a clear willingness to improve,” it “does not

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adequately share public-safety and terrorism-related
information,” and several terrorist groups are active within
Chad or the surrounding region. Id. at 45,165.
Iranian nationals may not enter as immigrants or
nonimmigrants except under valid student and exchange
visitor visas, and such visas are subject to “enhanced
screening and vetting.” Id. The Proclamation notes that
“Iran regularly fails to cooperate with the United States
Government in identifying security risks, fails to satisfy at
least one key risk criterion, is the source of significant
terrorist threats, and fails to receive its nationals” following
final orders of removal from the United States. Id.
The entry of Libyan nationals as immigrants and as
nonimmigrants on business, tourist, or business/tourist visas
is suspended because, although Libya “is an important and
valuable counterterrorism partner,” it “faces significant
challenges in sharing several types of information, including
public-safety and terrorism-related information,” “has
significant deficiencies in its identity-management
protocols,” does not “satisfy at least one key risk criterion,”
has not been “fully cooperative” in receiving its nationals
after their removal from the United States, and it has a
“substantial terrorist presence” within its territory. Id. at
45,165–66.
The entry of all Syrian nationals—on immigrant and
non-immigrant visas alike—is suspended because “Syria
regularly fails to cooperate with the United States
Government in identifying security risks, is the source of
significant terrorist threats, and has been designated by the
Department of State as a state sponsor of terrorism.” Id. at
45,166. Syria also has “significant inadequacies in identity-
management protocols, fails to share public-safety and

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terrorism information, and fails to satisfy at least one key
risk criterion.” Id.
Yemeni nationals may not enter the United States as
immigrants or nonimmigrants on business, tourist, or
business/tourist visas because despite being “an important
and valuable counterterrorism partner,” Yemen “faces
significant identity-management challenges, which are
amplified by the notable terrorist presence within its
territory.” Id. at 45,166–67.
Somali nationals may not enter the United States as
immigrants, and all nonimmigrant visa adjudications and
entry decisions for Somali nationals are subject to
“additional scrutiny.” Id. at 45,167. Although Somalia
satisfies information-sharing requirements, it “has
significant identity-management deficiencies” and a
“persistent terrorist threat also emanates from Somalia’s
territory.” Id.
These restrictions apply to foreign nationals of the
affected countries outside the United States who do not hold
valid visas as of the effective date and who do not qualify for
a visa under § 6(d)4 of the Proclamation. Id. Suspension of
entry does not apply to lawful permanent residents of the
United States; foreign nationals who are admitted, paroled,
or have a non-visa document permitting them to travel to the
United States and seek entry valid or issued on or after the
effective date of the Proclamation; any dual national
traveling on a passport issued by a non-designated country;
4 Section 6(d) of the Proclamation permits individuals whose visas
were marked revoked or canceled as a result of EO-1 to obtain “a travel
document confirming that the individual is permitted to travel to the
United States and seek entry under the terms” of the revoked or canceled
visa. 82 Fed. Reg. at 45,171.

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any foreign national on a diplomatic visa; any refugee
already admitted to the United States; or any individual
granted asylum, withholding of removal, advance parole, or
Convention Against Torture protection. Id. at 45,167–68.
Further, a consular officer, the Commissioner of U.S.
Customs and Border Protection, or the Commissioner’s
designee “may, in their discretion, grant waivers on a case-
by-case basis to permit the entry of foreign nationals for
whom entry is otherwise suspended or limited if such foreign
nationals demonstrate that waivers would be appropriate and
consistent” with certain specified guidelines. Id. at 45,168.
II. Justiciability
We first address several of the same justiciability
arguments that we found unpersuasive in Washington v.
Trump and Hawai‘i I. Once more, we reject the
Government’s contentions. The Proclamation cannot
properly evade judicial review.
A. Ripeness
The Government argues that Plaintiffs’ claims are
speculative and not ripe for adjudication until a specific
applicant is denied a visa.5 We reject this argument. We
conclude that the issues in this case are “fit for review,” and
that significant hardship to Plaintiffs would result from
“withholding court consideration” at this point. Nat’l Park
5 The Government does not challenge Plaintiffs’ Article III standing
on appeal. Nonetheless, we “have an obligation to consider Article III
standing independently, as we lack jurisdiction when there is no
standing.” Day v. Apoliona, 496 F.3d 1027, 1029 n.2 (9th Cir. 2007).
For the reasons set forth in the district court’s order, we conclude that
Plaintiffs have Article III standing. See Hawaiʻi TRO, 2017 WL
4639560, at *4–7.

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22 HAWAII V. TRUMP
Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 808, 812
(2003).
“Ripeness is peculiarly a question of timing, designed to
prevent the courts, through avoidance of premature
adjudication, from entangling themselves in abstract
disagreements.” Stormans, Inc. v. Selecky, 586 F.3d 1109,
1122 (9th Cir. 2009) (alteration and internal quotation marks
omitted) (quoting Thomas v. Anchorage Equal Rights
Comm’n, 220 F.3d 1134, 1138 (9th Cir. 2000)). This case
does not concern mere abstract disagreements. Instead,
Plaintiffs challenge the Proclamation as implemented by the
Department of State and the Department of Homeland
Security. That is permissible. Under the traditional
“pragmatic” approach to finality, an order may be
immediately reviewable even if no “particular action [has
been] brought against a particular [entity].” U.S. Army
Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, 1815 (2016)
(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 150
(1967)).
Moreover, contrary to the Government’s position, the
Proclamation’s waiver provisions are not a “sufficient safety
valve” and do not mitigate the substantial hardships
Plaintiffs have already suffered and will continue to suffer
due to the Proclamation. Washington, 847 F.3d at 1168–69.
Plaintiff Muslim Association of Hawaii, for example, has
already lost members as a result of the Proclamation and its
predecessors, and expects to lose more. The mere possibility
of a discretionary waiver does not render Plaintiffs’ injuries
“contingent [on] future events that may not occur.” Texas v.
United States, 523 U.S. 296, 300 (1998) (internal quotation
marks omitted) (quoting Thomas v. Union Carbide Agric.
Prods. Co., 473 U.S. 568, 580–81 (1985)). “[W]ithholding
court consideration” at this juncture would undoubtedly

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HAWAII V. TRUMP 23
result in further hardship to Plaintiffs. See Nat’l Park Hosp.
Ass’n, 538 U.S. at 808. We therefore conclude that
Plaintiffs’ claims are ripe for review.
B. Doctrine of Consular Nonreviewability
As in the litigation over EO-1 and EO-2, the Government
contends that we are precluded from reviewing the
Proclamation by the consular nonreviewability doctrine.
Under that doctrine, “the consular official’s decision to issue
or withhold a visa is not subject either to administrative or
judicial review.” Li Hing of Hong Kong, Inc. v. Levin,
800 F.2d 970, 971 (9th Cir. 1986). In other words, “it is not
within the province of any court, unless expressly authorized
by law, to review the determination of the political branch of
the Government to exclude a given alien.” U.S. ex rel.
Knauff v. Shaughnessy, 338 U.S. 537, 543 (1950) (emphasis
added). Although the political branches’ power to exclude
aliens is “largely immune from judicial control,” it is not
entirely immune; such decisions are still subject to “narrow
judicial review.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(citations omitted). Moreover, this case is not about
individual visa denials, but instead concerns “the President’s
promulgation of sweeping immigration policy.”
Washington, 847 F.3d at 1162. Reviewing the latter “is a
familiar judicial exercise,” Zivotofsky ex rel. Zivotofsky v.
Clinton, 566 U.S. 189, 196 (2012); courts do not hesitate to
reach “challenges to the substance and implementation of
immigration policy.” Washington, 847 F.3d at 1163.
Although “[t]he Executive has broad discretion over the
admission and exclusion of aliens, [] that discretion is not
boundless. It extends only as far as the statutory authority
conferred by Congress and may not transgress constitutional
limitations. It is the duty of the courts, in cases properly
before them, to say where those statutory and constitutional

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24 HAWAII V. TRUMP
boundaries lie.” Abourezk v. Reagan, 785 F.2d 1043, 1061
(D.C. Cir. 1986), aff’d by an equally divided court, 484 U.S.
1 (1987).
The Government’s arguments to the contrary are
foreclosed by Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
155, 187–88 (1993). In Sale, the Supreme Court reviewed
on the merits whether the President had violated the INA and
the United States’ treaty obligations by invoking his
authority under 8 U.S.C. § 1182(f) to “suspend[] the entry of
undocumented aliens from the high seas.” Id. at 160. By
reaching the merits, Sale necessarily first decided that the
Court had jurisdiction to review whether the President’s
orders under the color of § 1182(f) were ultra vires. See id.
at 187–88. As in Sale, here we determine whether the
Proclamation goes beyond the limits of the President’s
power to restrict alien entry.
Because Sale did not address the Court’s jurisdiction
explicitly, the Government speculates that the Supreme
Court “could have decided it was unnecessary to” reach this
issue, “given that the Court agreed with the government on
the merits.” We disagree. Instead, the argument “that a
court may decide [questions on the merits] before resolving
Article III jurisdiction” is “readily refuted.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 95 (1998). “Without
jurisdiction the court cannot proceed at all in any cause.” Id.
at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1868)).
“On every writ of error or appeal, the first and fundamental
question is that of jurisdiction . . . .” Id. (quoting Great S.
Fire Proof Hotel Co. v. Jones, 177 U.S. 449, 453 (1900)).
While it is true that “drive-by jurisdictional rulings . . . have
no precedential effect,” Sale was not a case where
jurisdiction “had been assumed by the parties” and so went
unaddressed. Id. at 91. To the contrary, as the Government

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HAWAII V. TRUMP 25
concedes, the parties in Sale thoroughly briefed and debated
this issue. See U.S. Br. 13–18 (No. 92-344); Resp. Br. 50–
58 (No. 92-344); Reply Br. 1–4 (No. 92-344).
Judicial review of the legality of the Proclamation
respects our constitutional structure and the limits on
Presidential power. The consular nonreviewability doctrine
arose to honor Congress’s choices in setting immigration
policy—not the President’s. See Sing v. United States,
158 U.S. 538, 547 (1895). This doctrine shields from
judicial review only the enforcement “through executive
officers” of Congress’s “declared [immigration] policy,” id.,
not the President’s rival attempt to set policy. The notion
that the Proclamation is unreviewable “runs contrary to the
fundamental structure of our constitutional democracy.” 6
Washington, 847 F.3d at 1161. We have jurisdiction to
review such an action, and we do so here.
C. Cause of Action and Statutory Standing
The Government also contends that Plaintiffs’ statutory
claims are unreviewable for lack of a cause of action and
lack of statutory standing. We disagree.
6 The Government argues that the President, at any time and under
any circumstances, could bar entry of all aliens from any country, and
intensifies the consequences of its position by saying that no federal
court—not a federal district court, nor our court of appeals, nor even the
Supreme Court itself—would have Article III jurisdiction to review that
matter because of the consular nonreviewability doctrine. United States
Court of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v.
Donald Trump, YouTube (Dec. 7, 2017) at 13:01–17:33,
https://www.youtube.com/watch?v=9Q0p_B40Pa8. Particularly in the
absence of an explicit jurisdiction-stripping provision, we doubt whether
the Government’s position could be adopted without running roughshod
over the principles of separation of powers enshrined in our Constitution.

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26 HAWAII V. TRUMP
1. APA Cause of Action
We begin first by examining whether Plaintiffs’ claims
are reviewable under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et seq. Although the President’s
actions fall outside the scope of direct review, see Franklin
v. Massachusetts, 505 U.S. 788, 800–01 (1992), “[r]eview of
the legality of Presidential action can ordinarily be obtained
in a suit seeking to enjoin the officers who attempt to enforce
the President’s directive,” id. at 828 (Scalia, J., concurring);
see also Chamber of Commerce v. Reich, 74 F.3d 1322,
1324, 1328 (D.C. Cir. 1996) (holding that it could review
whether an executive order conflicted with a federal statute
where plaintiffs had sought to enjoin executive branch
officials implementing the order). Here, Plaintiffs bring suit
not just against the President, but also against the entities
charged with carrying out his instructions: the Department
of State and the Department of Homeland Security. Further,
because these agencies have “consummat[ed]” their
implementation of the Proclamation, from which “legal
consequences will flow,” their actions are “final” and
therefore reviewable under the APA.7 Bennett v. Spear, 520
U.S. 154, 177–78 (1997) (citation and internal quotation
marks omitted).
Finally, the Government argues that the APA precludes
review of actions committed to “agency discretion by law,”
5 U.S.C. § 701(a)(2), and that the Proclamation is such an
action. Plaintiffs counter that the Proclamation is not an
unreviewable discretionary action, but rather is cabined by
discernible constitutional and statutory limits. We are not
7 The Government contends that there is no “final” agency action
here because Plaintiffs’ claims are unripe. For the reasons discussed
previously, we reject this argument.

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HAWAII V. TRUMP 27
persuaded by the Government’s characterization of the
Proclamation as an action committed to the Executive’s
discretion. This exception to the presumption of judicial
review is “very narrow,” applying only where “statutes are
drawn in such broad terms that . . . there is no law to apply.”
Heckler v. Chaney, 470 U.S. 821, 830 (1985) (quoting
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402,
410 (1971)). It does not apply where, as here, a court is
tasked with reviewing whether an executive action has
exceeded statutory authority. See Assiniboine & Sioux
Tribes v. Bd. of Oil & Gas Conservation, 792 F.2d 782, 791–
92 (9th Cir. 1986) (collecting cases).
2. Zone of Interests
The Government additionally argues that even if an APA
cause of action exists, Plaintiffs cannot avail themselves of
it because they do not fall within the INA’s zone of interests.
Once again, we are tasked with determining whether
Plaintiffs’ interests “fall within the zone of interests
protected by the law invoked.” Lexmark Int’l, Inc. v. Static
Control Components, Inc., 134 S. Ct. 1377, 1388 (2014)
(quoting Allen v. Wright, 468 U.S. 737, 751 (1984)).
We conclude that Dr. Elshikh’s challenge to the
Proclamation falls within the INA’s zone of interests. He
asserts that the Proclamation prevents his brothers-in-law
from reuniting with his family. See Legal Assistance for
Vietnamese Asylum Seekers v. Dep’t of State, 45 F.3d 469,
471–72 (D.C. Cir. 1995) (“The INA authorizes the
immigration of family members of United States citizens and
permanent resident aliens. In originally enacting the INA,
Congress implemented the underlying intention of our
immigration laws regarding the preservation of the family
unit. Given the nature and purpose of the statute, the resident
appellants fall well within the zone of interest Congress

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28 HAWAII V. TRUMP
intended to protect.” (internal citations and alterations
omitted)), vacated on other grounds, 519 U.S. 1 (1996).
John Does 1 and 2 fall within the same zone of interest,
alleging that they will be separated from family members—
a son-in-law and a mother, respectively.
The Government maintains that these interests are
inadequate because a relative of an alien seeking admission
has no right to participate in visa proceedings. Yet the
Supreme Court has reviewed the merits of cases brought by
U.S. residents with a specific interest in the entry of a
foreigner, as have we. See, e.g., Kerry v. Din, 135 S. Ct.
2128, 2131 (2015) (involving a challenge by U.S. citizen to
denial of her husband’s visa); Kleindienst v. Mandel,
408 U.S. 753, 756–60 (1972) (arising from a challenge by
American professors to denial of visa to journalist invited to
speak at academic events); Cardenas v. United States,
826 F.3d 1164, 1167 (9th Cir. 2016) (addressing a U.S.
citizen’s challenge to denial of husband’s visa). In a case
similar to the one before us, Legal Assistance for Vietnamese
Asylum Seekers v. Department of State, the D.C. Circuit
found that visa sponsors had standing to sue when they
alleged that the State Department’s refusal to process visa
applications resulted in an injury to the sponsors. 45 F.3d at
471–73.
Likewise, Hawai‘i’s “efforts to enroll students and hire
faculty members who are nationals from the six designated
countries fall within the zone of interests of the INA.”
Hawaiʻi I, 859 F.3d at 766. The INA clearly provides for
the admission of nonimmigrant students into the United
States. See 8 U.S.C. § 1101(a)(15)(F) (identifying students
qualified to pursue a full course of study); 8 C.F.R.
§ 214.2(f) (providing the requirements for nonimmigrant
students, including those in colleges and universities). The

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HAWAII V. TRUMP 29
INA also provides that nonimmigrant scholars and teachers
may be admitted into the United States. See, e.g., 8 U.S.C.
§ 1101(a)(15)(J) (identifying students, scholars, trainees,
and professors in fields of specialized knowledge or skill,
among others); id. § 1101(a)(15)(H) (identifying aliens
working in specialty occupations); id. § 1101(a)(15)(O)
(identifying aliens with extraordinary abilities in the
sciences, arts, education, business, or athletics). As we have
said before, “[t]he INA leaves no doubt” that Hawai‘i’s
interests in “student- and employment-based visa petitions
for its students and faculty are related to the basic purposes
of the INA.” Hawaiʻi I, 859 F.3d at 766.
Further, the Muslim Association of Hawai‘i (the
“Association”) alleges that its members will suffer harms
such as separation from their families, and that the
Association itself will suffer the loss of its members if it is
not granted a preliminary injunction.
Once again, we conclude that “Plaintiffs’ claims of
injury as a result of the alleged statutory violations are, at the
least, ‘arguably within the zone of interests’ that the INA
protects” and therefore judicially reviewable. Id. at 767
(quoting Bank of Am. Corp. v. City of Miami, — U.S. —,
137 S. Ct. 1296, 1303 (2017) (citation omitted) (emphasis
added).
Finally, the Government argues that the APA precludes
review of actions committed to an agency’s discretion by
law. Plaintiffs counter that the Proclamation is not an
unbounded discretionary action, but rather derives from a
congressional delegation of power with definite restrictions.
We are not persuaded by the Government’s characterization
of the Proclamation as a discretionary agency action. Simply
put, when discretion is limited by law—as it is here—we can
and do review whether “the President has violated a statutory

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30 HAWAII V. TRUMP
mandate.” Dalton v. Specter, 511 U.S. 462, 474 (1994). The
specter of “discretion” does not insulate the Proclamation
from judicial review.
3. Equitable Cause of Action
Even if there were no “final agency action” review under
the APA, courts have also permitted judicial review of
presidential orders implemented through the actions of other
federal officials.8 This cause of action, which exists outside
of the APA, allows courts to review ultra vires actions by
the President that go beyond the scope of the President’s
statutory authority. See Reich, 74 F.3d at 1327–28 (citing
Am. Sch. of Magnetic Healing v. McAnnulty, 187 U.S. 94,
108, 110 (1902) and Leedom v. Kyne, 358 U.S. 184, 188–89
(1958)) (permitting challenge to an Executive Order
promulgated by the president and implemented by the
Secretary of Labor, despite the lack of a final agency action
under the APA); see also Duncan v. Muzyn, 833 F.3d 567,
577–79 (6th Cir. 2016); R.I. Dep’t Envtl. Mgmt. v. United
States, 304 F.3d 31, 40–43 (1st Cir. 2002); cf. Armstrong v.
Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1384 (2015)
(citing McAnnulty for the proposition that federal courts may
enjoin “violations of federal law by federal officials”).
When, as here, Plaintiffs challenge the President’s statutory
authority to issue the Proclamation, we are provided with an
additional avenue by which to review these claims.
Having concluded that Plaintiffs’ claims are justiciable,
we now turn to the district court’s preliminary injunction.
8 The Supreme Court has decided the merits of such claims,
including the specific claim that an action exceeded the authority granted
under § 1182(f). See Sale, 509 U.S. at 187–88; see also Dames & Moore
v. Regan, 453 U.S. 654 (1981).

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HAWAII V. TRUMP 31
III. The Preliminary Injunction
A preliminary injunction is “an extraordinary remedy
that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008). “A plaintiff seeking a
preliminary injunction must establish [1] that he is likely to
succeed on the merits, [2] that he is likely to suffer
irreparable harm in the absence of preliminary relief, [3] that
the balance of equities tips in his favor, and [4] that an
injunction is in the public interest.” Id. at 20. We may affirm
the district court’s entry of the preliminary injunction “on
any ground supported by the record.” Enyart v. Nat’l
Conference of Bar Exam’rs, Inc., 630 F.3d 1153, 1159 (9th
Cir. 2011).
A. Likelihood of Success on the Merits
We consider first whether Plaintiffs are likely to succeed
on the merits. In so doing, we consider four arguments9
advanced by Plaintiffs: (1) the President has exceeded his
congressionally delegated authority under 8 U.S.C.
§ 1182(f); (2) the President has failed to satisfy § 1182(f)’s
requirement that prior to suspending entry, the President
must find that entry of the affected aliens would be
detrimental to the interests of the United States; (3) the
Proclamation’s ban on immigration from the designated
countries violates 8 U.S.C. § 1152(a)(1)(A)’s prohibition on
nationality-based discrimination; and (4) the President lacks
the authority to issue the Proclamation in the absence of a
statutory grant. We address each in turn.
9 As we explain below, we decline to reach Plaintiffs’ arguments
other than those listed here.

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32 HAWAII V. TRUMP
1. Scope of Authority under § 1182(f)
In determining whether the President has the statutory
authority to issue the Proclamation under 8 U.S.C. § 1182(f),
we begin with the text. See Sale, 509 U.S. at 171; Haig v.
Agee, 453 U.S. 280, 289–90 (1981). But our inquiry does
not end there. See FDA v. Brown & Williamson Tobacco
Corp., 529 U.S. 120, 132–33 (2000); see also United States
v. Witkovich, 353 U.S. 194, 199 (1957) (declining to “read
in isolation and literally” an immigration statute that
“appear[ed] to confer upon the Attorney General unbounded
authority”). In Brown & Williamson, the Court looked
beyond the “particular statutory provision in isolation,” and
interpreted the statute to create a “symmetrical and coherent
regulatory scheme.” 529 U.S. at 132–33. The Court thus
undertook a holistic review, which entailed examining the
statute’s legislative history, see id. at 146–47,
“congressional policy,” id. at 139, and “common sense as to
the manner in which Congress is likely to delegate a policy
decision of such economic and political magnitude,” id. at
133.
Taking guidance from the Court’s instructions in Brown
& Williamson to look beyond the challenged “provision in
isolation,” id. at 132, we conclude that the Proclamation is
inconsistent not just with the text of § 1182(f), but with the
statutory framework as a whole, legislative history, and prior
executive practice. Although no single factor may be
dispositive, these four factors taken together strongly
suggest that Plaintiffs are likely to succeed on their claim
that the President has exceeded his delegated authority under
§ 1182(f). We discuss each factor in greater detail below.

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HAWAII V. TRUMP 33
a. Statutory Text
We turn first to the text of § 1182(f). The INA grants the
President the power to “suspend the entry of . . . any class of
aliens” “for such period as he shall deem necessary.”
8 U.S.C. § 1182(f) (emphasis added). We note at the outset
that broad though the provision may be, the text does not
grant the President an unlimited exclusion power.
Congress’s choice of words is suggestive, at least, of its
hesitation in permitting the President to impose entry
suspensions of unlimited and indefinite duration. “The word
‘suspend’ connotes a temporary deferral.” Hoffman ex rel.
N.L.R.B. v. Beer Drivers & Salesmen’s Local Union No. 888,
536 F.2d 1268, 1277 (9th Cir. 1976) (citing Webster’s Third
New International Dictionary (1966) and Bouvier’s Law
Dictionary (3d ed. 1914)). “[T]he word ‘period,’” in turn,
“connotes a stated interval of time commonly thought of in
terms of years, months, and days.” United States v. Updike,
281 U.S. 489, 495 (1930). This construction of the term
“period” is reinforced by the requirement that it be
“necessary.” 10 § 1182(f).
At argument, the Government contended that the
indefinite duration of the Proclamation’s entry restrictions is
consistent with the text of § 1182(f). United States Court of
Appeals for the Ninth Circuit, 17-17168 State of Hawaii v.
Donald Trump, YouTube (Dec. 7, 2017) at 22:45–23:15.
10 As we discuss later, although prior executive orders or
proclamations invoking § 1182(f) did not provide for a set end date, they
were noticeably narrower in scope than the Proclamation. At the very
least, Congress in adopting § 1182(f) likely did not contemplate that an
executive order of the Proclamation’s sweeping breadth would last for
an indefinite duration.

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34 HAWAII V. TRUMP
Citing to § 4 of the Proclamation, which provides for a
review of the restrictions every 180 days, the Government
argued that because the suspensions will be “revisited” twice
a year, the Proclamation is less indefinite than President
Reagan’s and President Carter’s orders regarding Cubans
and Iranians,11 respectively. Id. at 23:04–23:14. This
argument is unpersuasive.
The Government has repeatedly emphasized that the
travel restrictions are necessary to incentivize and pressure
foreign governments into improving their information-
sharing and identity-management practices. This creates a
peculiar situation where the restrictions may persist ad
infinitum. To paraphrase a well-known adage, the
Proclamation’s review process mandates that the restrictions
will continue until practices improve. The Proclamation’s
duration can be considered definite only to the extent one
presumes that the restrictions will, indeed, incentivize
countries to improve their practices. Where, as here, there is
little evidence to support such an assumption, the
Proclamation risks producing a virtually perpetual
restriction—a result that the plain text of § 1182(f) heavily
disfavors for such a far-reaching order.12
11 Proclamation 5517, 51 Fed. Reg. 30,470 (Aug. 22, 1986) (Cuba
order); Exec. Order 12172, 44 Fed. Reg. 67,947 (Nov. 26, 1979) (Iran
order), amended by Exec. Order 12206, 45 Fed. Reg. 24,101 (Apr. 7,
1980).
12 Because issuing indefinite entry restrictions under these
circumstances violates § 1182(f), we further view § 1182(f) as
prohibiting a series of temporary bans when it appears such serial bans
are issued to circumvent the bar on indefinite entry restrictions. See also
Brief of T.A., a U.S. Resident of Yemeni Descent, as Amicus Curiae,
Dkt. No. 41 at 7–8 (arguing that § 1182(f)’s use of the singular as it

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b. Statutory Framework
We next examine the statutory framework of the INA.
Brown & Williamson, 529 U.S. at 133. We first note that the
Constitution gives Congress the primary, if not exclusive,
authority to set immigration policy. See Arizona v. United
States, 567 U.S. 387, 409 (2012) (citing Galvan v. Press,
347 U.S. 522, 531 (1954)); see also Fiallo, 430 U.S. at 792
(“[O]ver no conceivable subject is the legislative power of
Congress more complete than it is over the admission of
aliens.” (citation and internal quotation marks omitted));
Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 320, 340
(1909) (“[T]he authority of Congress over the right to bring
aliens into the United States embraces every conceivable
aspect of that subject . . . .”). Congress has delegated
substantial power in this area to the Executive Branch, but
the Executive may not exercise that power in a manner that
conflicts with the INA’s finely reticulated regulatory scheme
governing the admission of foreign nationals.
In line with this principle, the D.C. Circuit has held that
the Executive cannot use general exclusionary powers
conferred by Congress to circumvent a specific INA
provision without showing a threat to public interest,
welfare, safety or security that was independent of the
specific provision. Abourezk, 785 F.2d at 1057–58. The
Abourezk court reasoned that the Executive’s use of the
general exclusionary provision to deny entry to members of
groups proscribed in the specific provision would “rob [the
general provision] of its independent scope and meaning,”
relates to “proclamation” and “period” is meaningful and precludes the
use of serial bans to bypass the bar on indefinite suspensions, and noting
that other provisions in § 1182 specifically use plural nouns to authorize
multiple actions by the executive branch).

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render the specific provision superfluous, and conflict with
limits that Congress imposed on the use of the specific
provision. Id. at 1057. We agree with the D.C. Circuit’s
approach and apply it to § 1182(f).
We conclude that the Proclamation conflicts with the
statutory framework of the INA by indefinitely nullifying
Congress’s considered judgments on matters of
immigration. The Proclamation’s stated purposes are to
prevent entry of terrorists and persons posing a threat to
public safety, as well as to enhance vetting capabilities and
processes to achieve that goal. See Proclamation at 1
(“Enhancing Vetting Capabilities and Processes for
Detecting Attempted Entry Into the United States by
Terrorists or Other Public Safety-Threats” (emphasis
added)), § 1 (describing policy and purpose). Yet, Congress
has already acted to effectuate these purposes.
As for the prevention of entry of terrorists and persons
likely to pose public-safety threats, Congress has considered
these concerns, and enacted legislation to restrict entry of
persons on those specific grounds. Under 8 U.S.C.
§ 1182(a)(3)(B), any alien who has “engaged in a terrorist
activity” is inadmissible,13 unless the Secretary of State
determines in his unreviewable discretion that the alien
qualifies for a waiver. See id. § 1182(d)(3)(B). With regard
to public safety, Congress has created numerous
inadmissibility grounds, including an array of crime-related
grounds. See, e.g., id. § 1182(a)(2)(A) (crime of moral
13 The term “engaged in a terrorist activity” is comprehensive. For
example, “terrorist activity” includes any unlawful use of a weapon or
dangerous device “other than for mere personal monetary gain,” and
“[e]ngag[ing] in terrorist activity” includes providing “material support”
for any “terrorist activity” or terrorist organization. See 8 U.S.C.
§ 1182(a)(3)(B)(iii)(V)(bb), (a)(3)(B)(iv).

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turpitude or drug offense); § 1182(a)(2)(B) (two or more
offenses for which the aggregate sentences were five years
or more); § 1182(a)(2)(C) (drug trafficking or benefitting
from a relative who recently trafficked drugs);
§ 1182(a)(2)(D) (prostitution or “commercialized vice”);
§ 1182(a)(2)(H) (human trafficking); § 1182(a)(2)(I)
(money laundering); § 1182(a)(3) (“Security and related
grounds”).
With respect to the enhancement of vetting capabilities
and processes, we likewise conclude that Congress has
considered the reality that foreign countries vary with
respect to information-sharing and identity-management
practices, as well as terrorism risk. In fact, Congress
addressed those concerns in a neighboring section, 8 U.S.C.
§ 1187 (the Visa Waiver Program or “VWP”), which was
amended as recently as 2015 to address the heightened risk
of terrorism in certain countries. See Visa Waiver Program
Improvement and Terrorist Travel Prevention Act of 2015,
Pub. L. No. 114-113, § 203, 129 Stat. 2242, 2989–91.
Significantly, many of the criteria used to determine whether
a foreign national’s country of origin qualifies for VWP
treatment are replicated in the Proclamation’s list of baseline
criteria. This includes that the countries use electronic
passports, § 1187(a)(3)(B), report lost or stolen passports,
§ 1187(c)(2)(D), and not provide safe haven for terrorists,
§ 1187(a)(12)(D)(iii). See 82 Fed. Reg. 45,162. The
Proclamation even makes participation in the Visa Waiver
Program part of its criteria for evaluating countries. Id. at
45,162–63.
The Government argues that the Visa Waiver Program is
irrelevant because its “specific purpose” is the “facilitation
of travel,” and therefore it does not foreclose the President
from addressing the “separate issue of what to do about a

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country that fails so many criteria that its information-
sharing practices and other risk factors are collectively
inadequate.” This argument falls short. The Visa Waiver
Program’s travel facilitation purpose is notable, but not for
the reason advanced by the Government. As we explained
above, the Visa Waiver Program utilizes many of the same
criteria relied upon by the Proclamation. Congress thus
expressly considered the reality that countries vary with
respect to information-sharing and identity-management
practices, as well as terrorism risk. In response to that
reality, Congress could have enacted measures restricting
travel from countries with inadequate risk factors, taken no
action, or enacted provisions facilitating travel from low-risk
countries. In creating the Visa Waiver Program, Congress
chose the third approach. In so doing, Congress necessarily
determined that the interests of the United States would be
better served by facilitating more travel, not less. By heavily
restricting travel from the affected countries, the
Proclamation thus conflicts with the purpose of the Visa
Waiver Program.
More broadly, the Government contends that Plaintiffs’
reliance on the statutory framework is misplaced because
§ 1182(f) empowers the President to issue “supplemental”
admission restrictions when he finds that the national interest
so warrants. Although true, this merely begs the question of
whether the restrictions at issue here are “supplemental.”
We conclude that the indefinite suspension of entry of all
nationals from multiple countries, absent wartime or exigent
circumstances, nullifies rather than “supplement[s]” the
existing statutory scheme. The President is not foreclosed
from acting to enhance vetting capabilities and other
practices in order to strengthen existing immigration law, but
must do so in a manner consistent with Congress’s intent.
Put another way, the President cannot effectively abrogate

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existing immigration law while purporting to merely
strengthen it; the cure cannot be worse than the disease.
Here, the President has used his § 1182(f) and § 1185(a)
powers to nullify numerous specific provisions of the INA
indefinitely with regard to all nationals of six countries, and
has overridden Congress’s legislative responses to the same
concerns the Proclamation aims to address. The Executive
cannot without assent of Congress supplant its statutory
scheme with one stroke of a presidential pen.
c. Legislative History
The legislative history suggests further limitations on
§ 1182(f)’s broad grant of authority. Prior to passing the
INA, which included § 1182(f), the House of
Representatives debated an amendment that would have
continued to restrict the President’s authority to suspend
immigration only “[w]hen the United States is at war or
during the existence of a national emergency proclaimed by
the President.” 98 Cong. Rec. 4423 (statement of Rep.
Multer).14 Speaking in opposition to the ultimately
unsuccessful amendment, the sponsor of the bill urged that
14 Section 1182(f)’s 1941 predecessor limited the president’s
authority to suspend entry of aliens only to times of war or national
emergency. See Act of June 21, 1941, 55 Stat. 252, 252–53. In
anticipation of future immigration reform, the Senate Committee on the
Judiciary published a comprehensive report in 1950 on the state of
immigration laws in the country. See S. Rep. No. 81-1515, at 1–2 (1950).
Although the report states that the committee was considering a
provision that would “permit the President to suspend any and all
immigration whenever he finds such action to be desirable in the best
interests of the country,” it is unclear whether the report’s brief statement
was in reference to what would eventually become § 1182(f) two years
later. Id. at 381. More importantly, as Plaintiffs point out, none of the
bill’s supporters affirmatively voiced such a broad interpretation of
§ 1182(f) when pressed on the matter by members of the opposition.

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§ 1182(f)’s broad language was “absolutely essential,”
because
[W]hen there is an outbreak of an epidemic
in some country, whence these people are
coming, it is impossible for Congress to act.
People might conceivably in large numbers
come to the United States and bring all sorts
of communicable diseases with them. More
than that, suppose we have a period of great
unemployment? In the judgment of the
committee, it is advisable at such times to
permit the President to say that for a certain
time we are not going to aggravate that
situation.
Id. (statement of Rep. Walter) (emphasis added).
Although Representative Walter and the bill’s supporters
did not “intend[] [their] list of examples to be exhaustive,”
Pension Benefit Guaranty Corp. v. LTV Corp., 496 U.S. 633,
649 (1990), “it is significant that the example[s] Congress
did give” all share the common trait of exigency. Moran v.
London Records, Ltd., 827 F.2d 180, 183 (7th Cir. 1987).
Proponents of § 1182(f) deliberately pinned the provision to
examples where it would be difficult, if not impossible, for
Congress to react in a timely manner, thus necessitating swift
presidential action.15 The legislative history, then, suggests
15 We note that hearings in 1970 and 1977 produced testimony from
the Department of State that § 1182(f) (or § 212(f) of the INA) could be
traced to “health prohibitions” even though the text does not explicitly
limit executive use to exigencies, health or otherwise. See, e.g., United
States-South African Relations: South Africa’s Visa Policy: Hearing
Before the Subcomm. on Africa & Int’l Org. of the Comm. on Int’l
Relations H. Rep., 95th Cong. 10–11 (1977) (statement of Hon. Barbara

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that despite § 1182(f)’s facially broad grant of power,16 the
Proclamation—which cites to no exigencies, national or
otherwise, and does not respond to a situation Congress
would be ill-equipped to address—falls outside of the
boundaries Congress set.
M. Watson, Administrator, Bureau of Security and Consular Affairs,
Dep’t of State). Considering the strength of legislative history
supporting use of § 1182(f) to restrict entry during epidemics, it is
noteworthy that a 2014 Congressional Research Service report cautioned
that the provision could only “potentially” be used to prevent entry of
“foreign nationals traveling from a particular country or region from
which there has been an Ebola outbreak.” See Sarah A. Lister,
Preventing the Introduction and Spread of Ebola in the United States:
Frequently Asked Questions, Cong. Res. Serv. 3 (Dec. 5, 2014). The
report noted that § 1182(f) had “never been employed so broadly”
before. Id.
16 Several congressmen did express concerns prior to enactment that
§ 1182(f) would give the President “an untrammeled right, an
uninhibited right to suspend immigration entirely.” 98 Cong. Rec. 4423
(statement of Rep. Celler). Their “fears and doubts,” however, “are no
authoritative guide to the construction of legislation[,] [because] [i]n
their zeal to defeat a bill, [opponents to a bill] understandably tend to
overstate its reach.” Bryan v. United States, 524 U.S. 184, 196 (1998)
(internal citations and quotation marks omitted).
Moreover, there is some evidence that supporters of § 1182(f) and
its predecessor provision believed the opposition’s concerns
unreasonably presumed executive abuse of power. See 87 Cong. Rec.
5049 (1941) (statement of Rep. Bloom) (dismissing a representative’s
concerns because “the gentleman is figuring on something that the
President would not do”); see also 98 Cong. Rec. 4424 (statement of
Rep. Halleck) (“I take it that the gentleman would not be concerned
[about section 1182(f)] if he were sure he would always have a President
that could not do any wrong”).

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d. Prior Executive Practice
Notwithstanding the aforementioned factors, the
Government argues that “[h]istorical practice confirms the
breadth of, and deference owed to, the President’s exercise
of authority under Sections 1182(f) and 1185(a)(1).” We
pass no judgment on the legality or appropriateness of the
Executive’s past practice, but we consider such practice to
the extent it bears on congressional acquiescence. See
Abourezk, 785 F.2d at 1055 (“[E]vidence of congressional
acquiescence (or the lack thereof) in an administrative
construction of the statutory language during the thirty-four
years since the current act was passed could be telling.”); see
also Zemel v. Rusk, 381 U.S. 1, 17–18 (1965) (“We have
held . . . and reaffirm today, that the 1926 [Passport] Act
must take its content from history: it authorizes only those
passport refusals and restrictions ‘which it could fairly be
argued were adopted by Congress in light of prior
administrative practice.’” (quoting Kent v. Dulles, 357 U.S.
116, 128 (1958))).
The Government is correct that presidents have
suspended the entry of foreign nationals in various foreign
policy and national security settings, but we nevertheless
conclude that the Proclamation and its immediate
predecessors, EO-1 and EO-2, stand apart in crucial respects.
First, out of the forty-three proclamations or orders issued
under § 1182(f) prior to EO-1, forty-two targeted only
government officials or aliens who engaged in specific
conduct and their associates or relatives. See Kate M.
Manuel, Cong. Research Serv., R44743, Executive Authority
to Exclude Aliens: In Brief 6–10, (2017) (listing prior
§ 1182(f) proclamations and orders).
Only one § 1182(f) proclamation suspended entry of all
nationals of a foreign country. Proclamation 5517, issued in

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1986, suspended entry of Cuban nationals as immigrants in
response to the Cuba government’s own suspension of “all
types of procedures regarding the execution” of an
immigration agreement between the United States and Cuba.
51 Fed. Reg. 30,470 (Aug. 22, 1986). In addition, President
Carter delegated authority under § 1185(a) to the Secretary
of State and the Attorney General to prescribe limitations
governing the entry of Iranian nationals, but did not ban
Iranian immigrants outright. See Exec. Order 12172, 44 Fed.
Reg. 67,947 (Nov. 26, 1979), amended by Exec. Order
12206, 45 Fed. Reg. 24,101 (Apr. 7, 1980). These isolated
instances, which applied to a single country each and were
never passed on by a court, cannot sustain the weight placed
on them by the Government. See Solid Waste Agency of N.
Cook Cty. v. U.S. Army Corps of Eng’rs, 531 U.S. 159, 169
(2001) (“Although we have recognized congressional
acquiescence to administrative interpretations of a statute in
some situations, we have done so with extreme care.”).
Moreover, unlike the Proclamation, the Cuba and Iran
orders were intended to address specific foreign policy
concerns distinct from general immigration concerns already
addressed by Congress. The same holds true for the vast
majority of prior § 1182(f) suspensions. See, e.g., Executive
Order 13606, 77 Fed. Reg. 24,571 (Apr. 22, 2012)
(suspending entry of persons who facilitated cyber-attacks
and human rights abuses by the Syrian or Iranian
governments); Proclamation 6925, 61 Fed. Reg. 52,233
(Oct. 3, 1996) (suspending entry of persons “who formulate,
implement, or benefit from policies that impede Burma’s
transition to democracy, and the immediate family members
of such persons”); Proclamation 6569, 58 Fed. Reg. 31,897
(June 3, 1993) (suspending entry of persons “who formulate,
implement, or benefit from policies that impede the progress
of the negotiations designed to restore constitutional

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government to Haiti, and the immediate family members of
such persons”).
The only prior entry suspension lacking a foreign policy
or national security purpose distinct from general
immigration concerns is found in President Reagan’s High
Seas Interdiction Proclamation and its implementing
executive orders. That Proclamation suspended “entry of
undocumented aliens from the high seas” and ordered that
such entry “be prevented by the interdiction of certain
vessels carrying such aliens.” Proclamation 4865, 46 Fed.
Reg. 48,107 (Sep. 29, 1981). Consequently, Proclamation
4865 and its implementing executive orders, unlike the
present Proclamation, applied by their terms almost entirely
to aliens who were already statutorily inadmissible.17 See
id.; Exec. Order 12324, 46 Fed. Reg. 48,109 (Sep. 29, 1981);
Exec. Order 12807, 57 Fed. Reg. 23,133 (May 24, 1992).
We recognize that presidents ordinarily may use—and
have used—§ 1182(f) to suspend the entry of aliens who
might otherwise be admissible under the INA. But when, as
here, a presidential proclamation addresses only matters of
immigration already passed on by Congress, the President’s
§ 1182(f) authority is at its nadir.
17 Under 8 U.S.C. § 1182(a)(7)(A)(i)(I), an alien who does not
possess “a valid unexpired immigrant visa, reentry permit, border
crossing identification card, or other valid entry document” is
inadmissible. The High Seas Interdiction suspensions did, however,
affect some aliens who could have become admissible insofar as the
suspensions prevented refugees fleeing persecution from reaching
United States territorial waters. See Sale, 509 U.S. at 187–88 (holding
that barring the entry of refugees outside the territorial waters of the
United States did not violate the INA or the United Nations Convention
Relating to the Status of Refugees).

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The High Seas Interdiction suspensions are consistent
with this principle because they apply predominantly to
otherwise inadmissible aliens. In contrast, by suspending
entry of a class of 150 million potentially admissible aliens,
the Proclamation sweeps broader than any past entry
suspension and indefinitely nullifies existing immigration
law as to multiple countries. The Proclamation does so in
the name of addressing general public-safety and terrorism
threats, and what it deems to be foreign countries’
inadequate immigration-related practices—concerns that
Congress has already addressed.
We conclude that the Executive’s past practice does not
support the Government’s position. Instead, such practice
merely confirms that the Proclamation, like EO-2, “is
unprecedented in its scope, purpose, and breadth.” Hawai‘i
I, 859 F.3d at 779.
e. Constitutional Avoidance and Separation of Powers
Principles of separation of powers further compel our
conclusion that the Proclamation exceeds the scope of
authority delegated to the President under § 1182(f). It is a
bedrock principle of statutory interpretation that “where an
otherwise acceptable construction of a statute would raise
serious constitutional problems, the Court will construe the
statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.” Edward J.
DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988); see also INS v. St. Cyr,
553 U.S. 289, 300 (2001) (“[W]e are obligated to construe
the statute to avoid [serious constitutional] problems.”).
Here, a conclusion that the Proclamation does not exceed the
President’s delegated authority under § 1182(f) would raise
“serious constitutional problems” and should thus be
avoided. See DeBartolo, 485 U.S. at 575. Reading § 1182(f)

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to permit the Proclamation’s sweeping exercise of authority
would effectively render the statute void of a requisite
“intelligible principle” delineating the “general policy” to be
applied and “the boundaries of th[e] delegated authority,”
Mistretta v. United States, 488 U.S. 361, 372–73 (1989).
Without any meaningful limiting principles,18 the statute
would constitute an invalid delegation of Congress’s
“exclusive[]” authority, Galvan, 347 U.S. at 531, to
formulate policies regarding the entry of aliens.
As discussed above, the Proclamation functions as an
executive override of broad swaths of immigration laws that
Congress has used its considered judgment to enact. If the
Proclamation is—as the Government contends—authorized
under § 1182(f), then § 1182(f) upends the normal
functioning of separation of powers. Even Congress is
prohibited from enabling “unilateral Presidential action that
either repeals or amends parts of duly enacted statutes.”
Clinton v. City of New York, 524 U.S. 417, 439 (1998). This
is true even when the executive actions respond to issues of
“first importance,” issues that potentially place the country’s
“Constitution and its survival in peril.” Id. at 449 (Kennedy,
J., concurring). In addressing such critical issues, the
political branches still do not “have a somewhat free hand to
reallocate their own authority,” as the “Constitution’s
structure requires a stability which transcends the
convenience of the moment” and was crafted in recognition
that “[c]oncentration of power in the hands of a single branch
is a threat to liberty.” Id. at 449–50.
18 These limiting principles are primarily found in the text of the
statute, but also include the surrounding statutory framework, the
legislative history, and prior executive practice.

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And the Proclamation’s sweeping assertion of authority
is fundamentally legislative in nature. Where an action
“ha[s] the purpose and effect of altering the legal rights,
duties and relations of persons, including the Attorney
General, Executive Branch officials and [an alien], all
outside the legislative branch,” the Supreme Court has held
that the action is “essentially legislative in purpose and
effect” and thus cannot bypass the “single, finely wrought
and exhaustively considered, procedure” for enacting
legislation.19 INS v. Chadha, 462 U.S. 919, 951–52 (1983).
Here, the Proclamation does not merely alter the “legal
rights, duties and relations” of a single alien, but rather
affects the rights, duties and relations of countless American
citizens and lawful permanent residents whose ability to be
reunified with, and receive visits from, their family members
is inhibited by the Proclamation; the Proclamation also
significantly affects numerous officials within the
Department of Homeland Security and Department of State.
Id. at 952. Whereas the House’s action in Chadha “operated
. . . to overrule the Attorney General,” id., here the
Proclamation would operate to overrule Congress’s
“extensive and complex” scheme of immigration laws,
Arizona, 567 U.S. at 395, as they pertain to the eight affected
countries and the over 150 million affected individuals.
Decades of Supreme Court precedent support reading
meaningful limitations into § 1182(f) in order to avoid
striking down the statute itself as an unconstitutional
19 Although the Government has not explained why the President
has thus far failed to ask Congress to enact the Proclamation’s policies
by legislation, potential Congressional inaction cannot sustain the
President’s authority to issue the Proclamation, as “[f]ailure of political
will does not justify unconstitutional remedies” like violating the
Constitution’s separation of powers. Clinton v. City of New York,
524 U.S. at 499 (Kennedy, J., concurring).

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48 HAWAII V. TRUMP
delegation. For example, in Zemel v. Rusk, the Court opted
to read in limiting principles despite statutory language that,
on its face, appeared to grant the Executive complete
discretion: “The Secretary of State may grant and issue
passports under such rules as the President shall designate
and prescribe for and on behalf of the United States.”
381 U.S. at 7–8, 17. By so doing, the Court saved the statute
from constituting “an invalid delegation.” Id. at 18. The
Court noted that principles of separation of powers still
apply even in the field of foreign relations, holding that
“simply because a statute deals with foreign relations” does
not mean that the statute “can grant the Executive totally
unrestricted freedom of choice.” Id. at 17. Similarly, in
United States v. Witkovich, the Court—faced with statutory
language that “if read in isolation and literally, appears to
confer upon the Attorney General unbounded authority”—
nonetheless adopted a more “restrictive meaning” in order to
avoid the “constitutional doubts” implicated by a “broader
meaning.” 353 U.S. at 199.
To avoid the inescapable constitutional concerns raised
by the broad interpretation the Government urges us to
adopt, we interpret § 1182(f) as containing meaningful
limitations—limitations that the Proclamation, in effectively
rewriting the immigration laws as they pertain to the affected
countries, exceeds. After all, “whether the realm is foreign
or domestic, it is still the Legislative Branch, not the
Executive Branch, that makes the law.” Zivotofsky ex rel.
Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015).
2. Compliance with § 1182(f)
We next turn to whether, even assuming the President
did not exceed the scope of his delegated authority under
§ 1182(f), the Proclamation meets § 1182(f)’s requirement
that the President find that the entry of certain persons

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“would be detrimental to the interests of the United States”
prior to suspending their entry. 8 U.S.C. § 1182(f).
Although we considered this question in Hawai’i I and
ultimately answered it in the negative, 859 F.3d at 770–74,
the Proclamation differs from EO-2 in several ways. As we
discussed above, the Proclamation’s suspensions of entry
apply indefinitely, rather than for only 90 days. Unlike EO-
2, the Proclamation developed as a result of a multi-agency
review. The justifications for the Proclamation are different,
too. The Proclamation puts forth a national security interest
in information sharing between other countries and the
United States, explains that it imposes its restrictions as an
incentive for other countries to meet the United States’
information-sharing protocols, and identifies “tailored”
restrictions for each designated country. And the list of
affected countries differs from EO-2’s: the Proclamation
adds Chad, removes Sudan, and includes two non-majority
Muslim countries, North Korea and Venezuela.
Although there are some differences between EO-2 and
the Proclamation, these differences do not mitigate the need
for the President to satisfy § 1182(f)’s findings requirement.
Despite our clear command in Hawai‘i I, the Proclamation—
like EO-2—fails to “provide a rationale explaining why
permitting entry of nationals from the six designated
countries under current protocols would be detrimental to the
interests of the United States.” Id. at 773. In assessing
the scope of the President’s statutory authority, we begin
with the text. The relevant portion of § 1182(f) states:
Whenever the President finds that the entry
of any aliens or of any class of aliens into the
United States would be detrimental to the
interests of the United States, he may by
proclamation, and for such period as he shall

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deem necessary, suspend the entry of all
aliens or any class of aliens as immigrants or
nonimmigrants, or impose on the entry of
aliens any restrictions he may deem to be
appropriate.
8 U.S.C. § 1182(f).
While § 1182(f) gives the President broad authority to
suspend or place restrictions on the entry of aliens or classes
of aliens, this authority is not unlimited. Section 1182(f)
expressly requires that the President find that the entry of a
class of aliens would be detrimental to the interests of the
United States before the aliens in a class are excluded. The
use of the word “find” was deliberate. Congress used “find”
rather than “deem” in the immediate predecessor to
§ 1182(f) so that the President would be required to “base
his [decision] on some fact,” not on mere “opinion” or
“guesses.” 87 Cong. Rec. 5051 (1941) (statements of Rep.
Jonkman and Rep. Jenkins).
By contrast, the Proclamation summarily concludes:
“[A]bsent the measures set forth in this proclamation, the
immigrant and nonimmigrant entry into the United States of
persons described in section 2 of this proclamation would be
detrimental to the interests of the United States.” 82 Fed.
Reg. 45161–62. The Proclamation points out that screening
and vetting protocols enhance the Government’s ability to
“detect foreign nationals who may commit, aid, or support
acts of terrorism and other public-safety threats.” Id. at
45162. It then asserts that the travel restrictions will
encourage the targeted foreign governments to improve their
information-sharing and identity-management protocols and
practices. The degree of desired improvement is left
unstated; there is no finding that the present vetting

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procedures are inadequate or that there will be harm to our
national interests absent the Proclamation’s issuance.
In assessing the merits of Plaintiffs’ motion for a
preliminary injunction, the district court considered whether
the Government had made the requisite findings for the
President to suspend the entry of aliens under § 1182(f).
Relying on our decision in Hawaiʻi I, the district court
concluded that the Government had not. Hawaiʻi TRO, 2017
WL 4639560, at *9–10. Although our prior decision in
Hawai‘i I has since been vacated as moot, the Supreme
Court “express[ed] no view on the merits” in ordering
vacatur. Trump, 2017 WL 4782860, at *1. We therefore
adopt once more the position we articulated in Hawai‘i I that
§ 1182(f) requires entry suspensions to be predicated on a
finding of detriment to the United States. 859 F.3d at 773.
The Government argues that the “detailed findings” in
the Proclamation satisfy the standard we set forth in Hawai‘i
I. Plaintiffs respond that the findings were inadequate
because § 1182(f) expressly requires (1) “‘find[ings]’ that
support the conclusion that admission of the excluded aliens
would be ‘detrimental,’” and (2) “the harm the President
identifies must amount to a ‘detriment to the interests of the
United States.’” We agree with Plaintiffs.
The Proclamation makes no finding whatsoever that
foreign nationals’ nationality alone renders entry of this
broad class of individuals a heightened security risk to the
United States.20 Nor does it contain a finding that the
20 Rather, a declaration from former national security advisors—
quoting a study from the Department of Homeland Security—states:
“country of citizenship is unlikely to be a reliable indicator of potential
terrorist activity.”

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52 HAWAII V. TRUMP
nationality of the covered individuals alone renders their
entry into the United States on certain forms of visas
detrimental to the interests of the United States. As such,
there is no stated connection between the scope of the
restriction imposed and a finding of detriment that the
Government seeks to alleviate. While the district court may
have imprecisely stated that the Proclamation was
“unsupported by verifiable evidence,” Hawaiʻi TRO,
2017 WL 4639560, at *11, it was correct in concluding that
the stated findings do not satisfy § 1182(f)’s prerequisites.
To be sure, the Proclamation does attempt to rectify EO-
2’s lack of a meaningful connection between listed countries
and terrorist organizations. For instance, it cites to the fact
that “several terrorist groups are active” in Chad. 82 Fed.
Reg. at 45,165. But the Proclamation does not tie the
nationals of the designated countries to terrorist
organizations. For the second time, the Proclamation makes
no finding that nationality alone renders entry of this broad
class of individuals a heightened security risk or that current
screening processes are inadequate.21
National security is not a “talismanic incantation” that,
once invoked, can support any and all exercise of executive
power under § 1182(f). United States v. Robel, 389 U.S.
258, 263–64 (1967). Section 1182(f) requires that the
President make a finding that the entry of an alien or class of
aliens would be detrimental to the interests of the United
States. That requirement has not been met.
21 As the statistics provided by the Cato Institute demonstrate, no
national from any of the countries selected has caused any of the
terrorism-related deaths in the United States since 1975. See Brief of the
Cato Institute as Amicus Curiae, Dkt. No. 84 at 26–28.

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HAWAII V. TRUMP 53
The Government argues that the district court erred by
imposing a higher standard than that set forth in Hawai‘i I
by objecting to the President’s stated reasons for the ban, by
identifying internal inconsistencies, and by requiring
verifiable evidence. We need not address the Government’s
argument because, as discussed above, the Proclamation has
failed to make the critical finding that § 1182(f) requires.
We therefore hold that Plaintiffs have shown a likelihood of
success on the merits of their § 1182(f) claim that the
President has failed to make an adequate finding of
detriment.
3. Section 1185(a)
In addition to relying on § 1182(f), the Proclamation also
grounds its authority in 8 U.S.C. § 1185(a), which states:
Unless otherwise ordered by the President, it
shall be unlawful [] for any alien to depart
from or enter or attempt to depart from or
enter the United States except under such
reasonable rules, regulations, and orders, and
subject to such limitations and exceptions as
the President may prescribe.
8 U.S.C. § 1185(a)(1).
The Government does not argue that § 1185(a) provides
an independent basis to suspend entry. Instead, the
Government contends that § 1185(a) permits the President
to skirt the requirements of § 1182(f) because § 1185(a) does
not require a predicate finding before the President
prescribes reasonable rules, regulations, and orders
governing alien entry and departure. The Government also
argues that there is no meaningful standard for review
because these matters are committed to the President’s

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judgment and discretion. Plaintiffs respond that the
Government cannot use the general authority in § 1185(a) to
avoid the preconditions of § 1182(f).
We conclude that the Government cannot justify the
Proclamation under § 1182(f) by using § 1185(a) as a
backdoor. General grants in a statute are limited by more
specific statutory provisions, and § 1182(f) has a specific
requirement that there be a finding of detriment before entry
may be suspended or otherwise restricted. See RadLAX
Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639,
645 (2012) (“It is a commonplace of statutory construction
that the specific governs the general.” (internal quotation
marks and alterations omitted)). Section 1185(a) does not
serve as a ground for reversal of the district court’s
conclusion on Plaintiffs’ likelihood of success.
4. Section 1152(a)(1)(A)’s Prohibition on National
Origin Discrimination
Next, we consider the impact of 8 U.S.C.
§ 1152(a)(1)(A) on the President’s authority to issue the
Proclamation. Section 1152(a) states:
[N]o person shall receive any preference or
priority or be discriminated against in the
issuance of an immigrant visa because of the
person’s race, sex, nationality, place of birth,
or place of residence.
8 U.S.C. § 1152(a)(1)(A) (emphasis added).
The Government argues that the district court erred by
reading § 1152(a)(1)(A) to limit the President’s authority
under § 1182(f), and that § 1152(a)(1)(A) has never been
used as a constraint on the President’s authority under

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HAWAII V. TRUMP 55
§ 1182(f). In making this argument, the Government once
again urges us to conclude that § 1152(a)(1)(A) operates in
a separate sphere from § 1182(f). This we decline to do.
Congress enacted § 1152(a)(1)(A) of the INA
contemporaneously with the Civil Rights Act of 1964 and
the Voting Rights Act of 1965 to eliminate the “national
origins system as the basis for the selection of immigrants to
the United States.” H.R. Rep. No. 89-745, at 8 (1965). In
so doing, Congress manifested its intent to repudiate a
history of nationality and race-based discrimination in
United States immigration policy.22 See 110 Cong. Rec.
1057 (1964) (statement of Sen. Hart) (“[A]n immigration
policy with different standards of admissibility for different
racial and ethnic groups, in short, a policy with build-in bias,
is contrary to our moral and ethical policy.”). Recognizing
that “[a]rbitrary ethnic and racial barriers [had become] the
basis of American immigration policy,” Senator Hart, the
22 The discriminatory roots of the national origins system may be
traced back to 1875, when xenophobia towards Chinese immigrants
produced Congress’s first race-based immigration laws. See Brief of the
National Asian Pacific American Bar Association as Amicus Curiae,
Dkt. No. 126, at 5. The Page Law, passed in 1875, banned immigration
of women—primarily Asian women—who were presumed, simply by
virtue of their ethnicity and nationality, to be prostitutes. Id. at 5. The
Page Law was followed in quick succession by the Chinese Exclusion
Act in 1882 and the Scott Act in 1888. Id. at 6. These laws were justified
on security grounds. See Chae Chan Ping v. United States, 130 U.S.
581, 606 (1889) (declining to overturn the Scott Act because “the
government of the United States, through its legislative department,
considers the presence of foreigners of a different race in this country,
who will not assimilate with us, to be dangerous to its peace and
security.”). This underlying xenophobia eventually produced the
national origins system, which clearly signaled that “people of some
nations [were] more welcome to America than others,” and created
“token quotas” based on “implications of race superiority.” 110 Cong.
Rec. 1057 (statement of Sen. Hart).

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56 HAWAII V. TRUMP
bill’s sponsor, declared that § 1152(a)(1)(A) was necessary
“[t]o restore equality and fairplay in our selecting of
immigrants.” Id.
The Government argues that § 1152(a)(1)(A)’s
prohibition of discrimination in the issuance of visas does
not cabin the President’s authority to regulate entry under
§ 1182(f). We disagree. As the Government concedes, the
Proclamation restricts the entry of affected aliens by
precluding consular officers from issuing visas to nationals
from the designated countries. See 82 Fed. Reg. at 45,168.
Put another way, the Proclamation effectuates its restrictions
by withholding immigrant visas on the basis of nationality.
This directly contravenes Congress’s “unambiguous[]
direct[ions] that no nationality-based discrimination . . .
occur.” Legal Assistance for Vietnamese Asylum Seekers,
45 F.3d at 473.
We are bound to give effect to “all parts of a statute, if at
all possible.” Weinberger v. Hynson, Westcott & Dunning,
Inc., 412 U.S. 609, 633 (1973). The Government’s position
that § 1152(a)(1)(A) and § 1182(f) operate in different
spheres—the former in issuance of immigrant visas, the
latter in entry—would strip § 1152(a)(1)(A) of much of its
power. It is difficult to imagine that Congress would have
celebrated the passing of the bill as “one of the most
important measures treated by the Senate . . . [for its]
restate[ment] [of] this country’s devotion to equality and
freedom” had it thought the President could simply use
§ 1182(f) to bar Asian immigrants with valid immigrant
visas from entering the country. 111 Cong. Rec. 24785
(1965) (statement of Sen. Mansfield); see also Lyndon B.
Johnson, Remarks at the Signing of the Immigration Bill,
Liberty Island, New York, The Am. Presidency Project (Oct.
3, 1965), http://www.presidency.ucsb.edu/ws/index.php?pi

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HAWAII V. TRUMP 57
d=27292 (concluding that the discriminatory national
origins quota system “will never again shadow the gate to
the American Nation with the twin barriers of prejudice and
privilege”).
We do not think Congress intended § 1152(a)(1)(A) to
be so easily circumvented. We therefore read
§ 1152(a)(1)(A) as prohibiting discrimination on the basis of
nationality throughout the immigration visa process,
including visa issuance and entry. 23
To the extent that § 1152(a)(1)(A) conflicts with the
broader grant of authority in § 1182(f) and § 1185(a), the
Government asks us to give the latter two provisions
superseding effect. The Government argues that as the more
recently amended and “more specific” provision, § 1185(a)
ought to control over § 1152(a)(1)(A). We are unpersuaded
by this argument for several reasons.
First, when two statutory provisions are in irreconcilable
conflict, a later-enacted, more specific provision is treated as
23 Even if we assume for the sake of argument that Congress
intended § 1182(f) and § 1152(a)(1)(A) to operate in entirely separate
spheres, as is argued by the Government, the result would be the same.
This is so because both at oral argument and in the Proclamation’s text,
the Government has conceded that if its entry ban were upheld, all
embassy actions in issuing visas for nationals of the precluded countries
would cease. 82 Fed. Reg. at 45,168 (noting that waiver by consular
officers will be effective “both for the issuance of a visa and for any
subsequent entry on that visa” (emphasis added)); United States Court
of Appeals for the Ninth Circuit, 17-17168 State of Hawaii v. Donald
Trump, YouTube (Dec. 7, 2017) at 9:55–11:33; 11:59–12:12.
Enforcement of the entry ban under § 1182(f) would inescapably violate
§ 1152(a)(1)(A)’s prohibition on nationality-based discrimination in the
issuance of immigrant visas, because the Proclamation effectively bars
nationals of the designated countries from receiving immigrant visas.

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an exception to an earlier-enacted, general provision. See,
e.g., Perez-Guzman v. Lynch, 835 F.3d 1066, 1075 (9th Cir.
2016); Antonin Scalia & Bryan A. Garner, Reading Law:
The Interpretation of Legal Texts, 183–87 (2012). Section
1152(a)(1)(A) was enacted over a decade after § 1182(f).
Section 1152(a)(1)(A) also operates at a greater level of
specificity than either § 1182(f) or § 1185(a)—it eliminates
nationality-based discrimination for the issuance of
immigrant visas. Because the “specific provision is
construed as an exception to the general one,” we agree with
Plaintiffs that § 1152(a)(1)(A) provides a specific anti-
discrimination bar to the President’s general § 1182(f)
powers. RadLAX, 566 U.S. at 645.
Second, § 1152(a)(1)(A) clearly provides for exceptions
in a number of circumstances. See 8 U.S.C. §§ 1101(a)(27),
1151(b)(2)(A)(i), and 1153. Neither § 1182(f) nor § 1185(a)
is included in the list of enumerated exceptions. We
presume that Congress’s inclusion of specified items and
exclusion of others is intentional. See United States v. Vance
Crooked Arm, 788 F.3d 1065, 1075 (9th Cir. 2015) (“Under
the longstanding canon expressio unius est exclusio alterius,
we presume that the exclusion of . . . phrases” by Congress
was intentional). The conspicuous absence of § 1182(f) and
§ 1185(a) from the listed exceptions vitiates the
Government’s position that both provisions fall outside
§ 1152(a)(1)(A)’s purview.
Lastly, the Government’s reliance on prior Executive
practice is misplaced. The Government again points to
President Reagan’s Proclamation 5517 suspending
immigration from Cuba in response to Cuba’s own
suspension of immigration practices, and President Carter’s
Executive Order 12172 and the accompanying visa issuance
regulations as to Iranian nationals during the Iran hostage

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HAWAII V. TRUMP 59
crisis. As we explained above, supra at § III.A.1.d, those
restrictions were never challenged in court and we do not
pass on their legality now. Moreover, both orders are
outliers among the forty-plus presidential executive orders
restricting entry, and therefore cannot support a showing of
congressional acquiescence. See Solid Waste Agency,
531 U.S. at 169. Finally, we need not decide whether a
President may, under special circumstances and for a limited
time, suspend entry of all nationals from a foreign country.
See IRAP v. Trump, No. TDC-17-0361, 2017 WL 4674314,
at *21 (D. Md. Oct. 17, 2017). Such circumstances, if they
exist, have not been argued here.
For the reasons stated above, the Proclamation’s
indefinite entry suspensions constitute nationality
discrimination in the issuance of immigrant visas. We
therefore conclude that Plaintiffs have shown a likelihood of
success on the merits of their claim that the Proclamation
runs afoul of § 1152(a)(1)(A)’s prohibition on nationality-
based discrimination.
5. Alternative Authority
Having concluded that the Proclamation violates the
INA and exceeds the scope of the President’s delegated
authority under § 1182(f), we view the Proclamation as
falling into Justice Jackson’s third category from
Youngstown Sheet & Tube Co. v. Sawyer: “[w]hen the
President [has] take[n] measures incompatible with the
expressed or implied will of Congress.” 343 U.S. 579, 637
(1952) (Jackson, J., concurring). Under Youngstown’s
tripartite framework, presidential actions that are contrary to
congressional will leave the President’s “power [] at its
lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of
Congress over the matter.” Id. We therefore must determine

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whether the President has constitutional authority to issue
the Proclamation, independent of any statutory grant—for if
he has such power, it may be immaterial that the
Proclamation violates the INA. But when a President’s
action falls into “this third category, the President's asserted
power must be both ‘exclusive’ and ‘conclusive’ on the
issue” in order to succeed. Zivotofsky ex rel. Zivotofsky,
135 S. Ct. at 2084.
We conclude that the President lacks independent
constitutional authority to issue the Proclamation, as control
over the entry of aliens is a power within the exclusive
province of Congress.24 See Galvan, 347 U.S. at 531 (“[T]he
formulation of these [immigration] policies is entrusted
exclusively to Congress”); see also Arizona, 567 U.S. at 407
(citing Galvan, 347 U.S. at 531). While the Supreme Court’s
earlier jurisprudence contained some ambiguities on the
division of power between Congress and the Executive on
immigration,25 the Court has more recently repeatedly
24 In Hawai’i I, we opted not to decide the question of “whether and
in what circumstances the President may suspend entry under his
inherent powers as commander-in-chief or in a time of national
emergency.” 859 F.3d 741, 782 n.21 (9th Cir. 2017). In holding today
that the President lacked independent constitutional authority to issue the
Proclamation, we again need not, and do not, decide whether the
President may be able to suspend entry pursuant to his constitutional
authority under any circumstances (such as in times of war or national
emergency), as the Proclamation was issued under no such exceptional
circumstances.
25 See Adam B. Cox & Cristina M. Rodriguez, The President and
Immigration Law, 119 Yale L.J. 458, 467–482 (2009) (examining the
Supreme Court’s shift from viewing authority over immigration as
ambiguously belonging to the political branches—without specifying the
allocation of power between the two—to increasingly identifying control
over immigration as the province of Congress).

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HAWAII V. TRUMP 61
recognized congressional control over immigration policies.
See, e.g., Chadha, 462 U.S. at 940 (“The plenary authority
of Congress over aliens under Art. I, § 8, cl. 4 is not open to
question”); Fiallo, 430 U.S. at 793 (recognizing “the need
for special judicial deference to congressional policy choices
in the immigration context”); Galvan, 347 U.S. at 531–32
(“[T]hat the formulation of these policies is entrusted
exclusively to Congress has become about as firmly
imbedded in the legislative and judicial tissues of our body
politic as any aspect of our government . . . . [we] must
therefore under our constitutional system recognize
congressional power in dealing with aliens.”).
Exclusive congressional authority over immigration
policy also finds support in the Declaration of Independence
itself, which listed “obstructing the Laws for Naturalization
of Foreigners” and “refusing to pass [laws] to encourage
their migrations hither” as among the acts of “absolute
Tyranny” of “the present King of Great Britain.” The
Declaration of Independence para. 2 (U.S. 1776). As Justice
Jackson noted in Youngstown, “The example of such
unlimited executive power that must have most impressed
the forefathers was the prerogative exercised by George III,
and the description of its evils in the Declaration of
Independence leads me to doubt that they were creating their
new Executive in his image.” 343 U.S. at 641 (Jackson, J.,
concurring). This is perhaps why the Constitution vested
Congress with the power to “establish an uniform Rule of
Naturalization”: the Framers knew of the evils that could
result when the Executive exerts authority over the entry of
aliens, and so sought to avoid those same evils by granting
such powers to the legislative branch instead. See U.S.
Const. art. I, § 8, cl. 4.

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62 HAWAII V. TRUMP
B. Remaining Preliminary Injunction Factors
The three remaining preliminary injunction factors also
lead us to affirm the preliminary injunction. Plaintiffs have
successfully shown that they are likely to suffer irreparable
harm in the absence of preliminary relief, that the balance of
equities tips in their favor, and that the preliminary
injunction is in the public interest. Winter, 555 U.S. at 20.
1. Irreparable Harm
The Government argues that Plaintiffs will suffer “no
cognizable harm” absent the injunction because the
Proclamation may only “delay” their relatives, students and
faculty, and members from entering the United States.
Indefinite delay, however, can rise to the level of irreparable
harm. See, e.g., CBS, Inc. v. Davis, 510 U.S. 1315, 1318
(1994) (Blackmun, J., in chambers) (granting emergency
stay from preliminary injunction because the “indefinite
delay” of a broadcast would cause “irreparable harm to the
news media”). This is one such instance.
Plaintiffs have presented evidence that the Proclamation
will result in “prolonged separation from family members,
constraints to recruiting and retaining students and faculty
members to foster diversity and quality within the University
community, and the diminished membership of the
Association,” the last of which “impacts the vibrancy of [the
Association’s] religious practices and instills fear among its
members.” Hawaiʻi TRO, 2017 WL 4639560, at *13. As
we have said before, “[m]any of these harms are not
compensable with monetary damages and therefore weigh in
favor of finding irreparable harm.” Hawaiʻi I, 859 F.3d at
782–83; see also Washington, 847 F.3d at 1168–69 (“[T]he
States contend that the travel prohibitions harmed the States’
university employees and students, separated families, and

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HAWAII V. TRUMP 63
stranded the States’ residents abroad.”); Hernandez v.
Sessions, 872 F.3d 976, 995 (9th Cir. 2017) (characterizing
the “collateral harms to children of detainees whose parents
are detained” as an irreparable harm); Regents of Univ. of
Cal. v. Am. Broad. Cos., Inc., 747 F.2d 511, 520 (9th Cir.
1984) (crediting intangible harms such as the “impairment
of their ongoing recruitment programs [and] the dissipation
of alumni and community goodwill and support garnered
over the years”); cf. Moore v. East Cleveland, 431 U.S. 494,
503–04 (1977) (explaining that “the Constitution protects
the sanctity of the family precisely because the institution of
the family is deeply rooted in this Nation’s history and
tradition”).
We therefore conclude that Plaintiffs are likely to suffer
irreparable harm in the absence of the preliminary
injunction.
2. Balance of Equities
We next conclude that the district court correctly
balanced the equities in this case. When considering the
equities of a preliminary injunction, we must weigh the
“competing claims of injury” and “consider the effect on
each party of the granting or withholding of the requested
relief.” Winter, 555 U.S. at 24 (citation omitted). In contrast
to Plaintiffs’ concrete allegations of harm, the Government
cites to general national security concerns.26 National
security is undoubtedly a paramount public interest, see
26 The Government additionally argues that “[t]he injunction . . .
causes irreparable injury by invalidating an action taken at the height of
the President’s authority.” Not so. For the reasons discussed earlier, by
acting in a manner incompatible with Congress’s will, the President’s
power here is “at its lowest ebb.” Youngstown, 343 U.S. at 638 (Jackson,
J., concurring).

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64 HAWAII V. TRUMP
Haig, 453 U.S. at 307 (“[N]o governmental interest is more
compelling than the security of the Nation.”), but it cannot
be used as a “talisman . . . to ward off inconvenient claims.”
Ziglar v. Abbasi, 137 S. Ct. 1843, 1862 (2017); cf. New York
Times Co. v. United States, 403 U.S. 713, 719 (1971) (Black,
J., concurring) (describing “security” as a “broad, vague
generality whose contours should not be invoked to
abrogate” the law). When, as here, the President has failed
to make sufficient findings that the “entry of certain classes
of aliens would be detrimental to the national interest,” “we
cannot conclude that national security interests outweigh the
harms to Plaintiffs.” Hawaiʻi I, 859 F.3d at 783.
The injunction here would only preserve the status quo
as it existed prior to the Proclamation while the merits of the
case are being decided. We think it significant that the
Government has been able to successfully screen and vet
foreign nationals from the countries designated in the
Proclamation under current law for years. See Brief of the
Cato Institute as Amicus Curiae, Dkt. No. 84 at 26–27
(explaining that, from 1975 through 2017, "no one has been
killed in a terrorist attack on U.S. soil by nationals from any
of the eight Designated Countries"); id. at 29 (showing that
the U.S. incarceration rate for persons born in the designated
countries is lower than the U.S. incarceration rates for
persons born in the U.S. or other non-U.S. countries).
Accordingly, the balance of equities tips in Plaintiffs’ favor.
3. Public Interest
Lastly, we consider whether Plaintiffs have successfully
shown that “an injunction is in the public interest.” Winter,
555 U.S. at 20. We conclude that they have.
It is axiomatic that the President must exercise his
executive powers lawfully. When there are serious concerns

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HAWAII V. TRUMP 65
that the President has not done so, the public interest is best
served by “curtailing unlawful executive action.” Texas v.
United States, 809 F.3d 134, 187 (5th Cir. 2015), aff’d by an
equally divided court 136 S. Ct. 2271 (2016). Amici provide
further insight into the public interests that would be served
by sustaining the district court’s injunction. They have
furnished us with a plethora of examples, of which we
highlight a few.
Amici persuasively cite to increased violence directed at
persons of the Muslim faith as one of the Proclamation’s
consequences. See Brief of Civil Rights Organizations as
Amici Curiae, Dkt. No. 52 at 19–23; Brief of Members of
the Clergy et al. as Amici Curiae, Dkt. No. 97 at 29–32.
Amici also explain that by singling out nationals from
primarily Muslim-majority nations, the Proclamation has
caused Muslims across the country to suffer from
psychological harm and distress, including growing anxiety,
fear, and terror. Brief of Muslim Justice League et al. as
Amici Curiae, Dkt. No. 68 at 21–23.
In assessing the public interest, we are reminded of
Justice Murphy’s wise words: “All residents of this nation
are kin in some way by blood or culture to a foreign land.”
Korematsu v. United States, 323 U.S. 214, 242 (Murphy, J.,
dissenting). It cannot be in the public interest that a portion
of this country be made to live in fear.
We note, too, that the cited harms are extensive and
extend beyond the community. As Amici point out, the
Proclamation, like its predecessors, “continues to disrupt the
provision of medical care” and inhibits “the free exchange
of information, ideas, and talent between the designated
countries and [various] [s]tates, causing long-term economic
and reputational damage.” Brief of New York et al. as Amici
Curiae, Dkt. No. 71 at 4. Moreover, because the

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Proclamation bans the entry of potential entrepreneurs,
inventers, and innovators, the public’s interest in innovation
is thwarted at both the state and corporate levels. See Brief
of Technology Companies as Amici Curiae, Dkt. No. 99 at
5–7. The Proclamation further limits technology
companies’ abilities to hire to full capacity by barring
nationals of the designed countries from filling vacant
positions. See Brief of Massachusetts Technology
Leadership Council as Amicus Curiae, Dkt. No. 120 at 8–16
(explaining that “the technology industry is growing too
rapidly to be staffed through domestic labor alone”).
The Proclamation also risks denying lesbian, gay,
bisexual, transgender, and queer (“LGBTQ”) individuals in
the United States the opportunity to reunite with their
partners from the affected nations. See Brief of Immigration
Equality et al. as Amici Curiae, Dkt. No. 101 at 17–20. The
Proclamation allows that it “may be appropriate” to grant
waivers to foreign nationals seeking to reside with close
family members in the United States. 82 Fed. Reg. at
45,168–69. But many of the affected nations criminalize
homosexual conduct, and LGBTQ aliens will face
heightened danger should they choose to apply for a visa
from local consular officials on the basis of their same-sex
relationships. Brief of Immigration Equality at 4. The
public interest is not served by denying LGBTQ persons in
the United States the ability to safely bring their partners
home to them.
* * *
For the foregoing reasons, we conclude that the district
court did not abuse its discretion in granting an injunction.

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C. Scope of the Preliminary Injunction
The Government argues that the injunction is overbroad
because it is not limited to redressing the Plaintiffs’ “own
cognizable injuries.” Plaintiffs argue that the nationwide
scope of the injunction is appropriate particularly in the
immigration context because piecemeal relief would
fragment immigration policy. Plaintiffs further argue that it
would be impracticable or impossible for them to name all
those who would apply to the University of Hawai‘i or the
Association, but who have been chilled or prevented by the
Proclamation from doing so.
We review the scope of a preliminary injunction for
abuse of discretion. McCormack v. Hiedeman, 694 F.3d
1004, 1010 (9th Cir. 2012). Although the district court has
“considerable discretion in fashioning suitable relief and
defining the terms of an injunction,” Lamb-Weston, Inc. v.
McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991), there
are limitations on this discretion. Injunctive relief must be
“tailored to remedy the specific harm[s]” shown by the
plaintiffs. Id.
Because this case implicates immigration policy, a
nationwide injunction was necessary to give Plaintiffs a full
expression of their rights. See Bresgal v. Brock, 843 F.2d
1163, 1170–71 (9th Cir. 1987) (“[A]n injunction is not
necessarily made over-broad by extending benefit or
protection to persons other than prevailing parties in the
lawsuit—even if it is not a class action—if such breadth is
necessary to give prevailing parties the relief to which they
are entitled.”). “[T]he Constitution requires ‘an uniform
Rule of Naturalization’; Congress has instructed that ‘the
immigration laws of the United States should be enforced
vigorously and uniformly’; and the Supreme Court has
described immigration policy as ‘a comprehensive and

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68 HAWAII V. TRUMP
unified system.’” Texas, 809 F.3d at 187–88 (citations
omitted). Any application of § 2 of the Proclamation would
exceed the scope of § 1182(f), violate § 1152(a)(1)(A), and
might harm Plaintiffs’ interests. Accordingly, the district
court did not abuse its discretion by granting a nationwide
injunction.
Although a nationwide injunction is permissible, a
worldwide injunction as to all nationals of the affected
countries extends too broadly. As the Supreme Court
observed in IRAP: “The equities relied on by the lower
courts do not balance the same way in that context.” 137 S.
Ct. at 2088. “[W]hatever burdens may result from
enforcement of § 2(c) against a foreign national who lacks
any connection to this country, they are, at a minimum, a
good deal less concrete than the hardships identified
[previously].” Id. “At the same time, the Government’s
interest in enforcing § 2(c), and the Executive’s authority to
do so, are undoubtedly at their peak when there is no tie
between the foreign national and the United States.” Id.
We therefore narrow the scope of the preliminary
injunction, as we did in our November 13, 2017 order on the
Government’s motion for emergency stay. See Hawai‘i v.
Trump, 2017 WL 5343014, at *1. We then wrote:
The preliminary injunction is stayed except
as to “foreign nationals who have a credible
claim of a bona fide relationship with a
person or entity in the United States,” as set
out below.
The injunction remains in force as to foreign
nationals who have a “close familial
relationship” with a person in the United
States. Such persons include grandparents,

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HAWAII V. TRUMP 69
grandchildren, brothers-in-law, sisters-in-
law, aunts, uncles, nieces, nephews, and
cousins. “As for entities, the relationship
must be formal, documented, and formed in
the ordinary course, rather than for the
purpose of evading [Proclamation 9645].”
Id. (internal citations omitted).
We again limit the scope of the district court’s injunction
to those persons who have a credible bona fide relationship
with a person or entity in the United States. The injunction
remains in force as to foreign nationals who have a “close
familial relationship” with a person in the United States,
including grandparents, grandchildren, brothers-in-law,
sisters-in-law, aunts, uncles, nieces, nephews, and cousins.
As for entities, the relationship must be formal, documented,
and formed in the ordinary course of business, rather than
for the purpose of evading the Proclamation.
IV. Establishment Clause Claim
Plaintiffs argue that the Proclamation also violates the
Establishment Clause of the United States Constitution.
They urge us to adopt the view taken by the en banc Fourth
Circuit in its review of EO-2 that “the reasonable observer
would likely conclude that EO-2’s primary purpose [wa]s to
exclude persons from the United States on the basis of their
religious beliefs.” IRAP, 857 F.3d at 601.
Because we conclude that the district court did not abuse
its discretion in granting the preliminary injunction relying
on Plaintiffs’ statutory claims, we need not and do not
consider this alternate constitutional ground. See Am.
Foreign Serv. Ass’n v. Garfinkel, 490 U.S. 153, 161 (1989)
(“Particularly where, as here, a case implicates the

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fundamental relationship between the Branches, courts
should be extremely careful not to issue unnecessary
constitutional rulings.”).
V. Conclusion
For all of these reasons, we affirm in part and vacate in
part the district court’s preliminary injunction order. We
narrow the scope of the injunction to give relief only to those
with a credible bona fide relationship with the United States,
pursuant to the Supreme Court’s decision in IRAP, 137 S.
Ct. at 2088. In light of the Supreme Court’s order staying
this injunction pending “disposition of the Government’s
petition for a writ of certiorari, if such writ is sought,” we
stay our decision today pending Supreme Court review.
Trump v. Hawai‘i, No. 17A550, — S. Ct. —, 2017 WL
5987406 (Dec. 4, 2017). Because we conclude that Plaintiffs
have shown a likelihood of success on their statutory claims,
we need not reach their Establishment Clause or Due Process
claims.
AFFIRMED IN PART, VACATED IN PART.

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