State of Washington; State of Minnesota v. DONALD J. TRUMP, President of the United States

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STATE OF WASHINGTON; STATE OF
MINNESOTA,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, President of the
United States; U.S. DEPARTMENT OF
HOMELAND SECURITY; REX W.
TILLERSON, Secretary of State; JOHN
F. KELLY, Secretary of the
Department of Homeland Security;
UNITED STATES OF AMERICA,
Defendants-Appellants.
No. 17-35105
D.C. No.
2:17-cv-00141
ORDER
Filed March 15, 2017
Before: William C. Canby, Jr., Richard R. Clifton,
sand Michelle T. Friedland, Circuit Judges.
Order;
Concurrence by Judge Reinhardt;
Dissent by Judge Bybee

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STATE OF WASHINGTON V. TRUMP 2
ORDER
This court in a published order previously denied a
motion of the government for a stay of a restraining order
pending appeal. 847 F.3d 1151 (9th Cir. 2017). That order
became moot when this court granted the government's
unopposed motion to dismiss its underlying appeal. Order,
Mar. 8, 2017. No party has moved to vacate the published
order. A judge of this court called for a vote to determine
whether the court should grant en banc reconsideration in
order to vacate the published order denying the stay. The
matter failed to receive a majority of the votes of the active
judges in favor of en banc reconsideration. Vacatur of the
stay order is denied. See U.S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U.S. 18, (1994) (holding that
the “extraordinary remedy of vacatur” is ordinarily
unjustified when post-decision mootness is caused by
voluntary action of the losing party).
This order is being filed along with the concurrence of
Judge Reinhardt and the dissent of Judge Bybee. Filings by
other judges may follow.
REINHARDT, Circuit Judge, concurring in the denial of en
banc rehearing:
I concur in our court’s decision regarding President
Trump’s first Executive Order – the ban on immigrants and
visitors from seven Muslim countries. I also concur in our
court’s determination to stand by that decision, despite the
effort of a small number of our members to overturn or vacate
it. Finally, I am proud to be a part of this court and a judicial

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STATE OF WASHINGTON V. TRUMP 3
system that is independent and courageous, and that
vigorously protects the constitutional rights of all, regardless
of the source of any efforts to weaken or diminish them.
BYBEE, Circuit Judge, with whom KOZINSKI,
CALLAHAN, BEA, and IKUTA, Circuit Judges, join,
dissenting from the denial of reconsideration en banc:
I regret that we did not decide to reconsider this case en
banc for the purpose of vacating the panel’s opinion. We
have an obligation to correct our own errors, particularly
when those errors so confound Supreme Court and Ninth
Circuit precedent that neither we nor our district courts will
know what law to apply in the future.
The Executive Order of January 27, 2017, suspending the
entry of certain aliens, was authorized by statute, and
presidents have frequently exercised that authority through
executive orders and presidential proclamations. Whatever
we, as individuals, may feel about the President or the
Executive Order,1 the President’s decision was well within
the powers of the presidency, and “[t]he wisdom of the policy
choices made by [the President] is not a matter for our
consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S.
155, 165 (1993). This is not to say that presidential
immigration policy concerning the entry of aliens at the
1 Our personal views are of no consequence. I note this only to
emphasize that I have written this dissent to defend an important
constitutional principle—that the political branches, informed by foreign
affairs and national security considerations, control immigration subject
to limited judicial review—and not to defend the administration’s policy.

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STATE OF WASHINGTON V. TRUMP 4
border is immune from judicial review, only that our review
is limited by Kleindienst v. Mandel, 408 U.S. 753
(1972)—and the panel held that limitation inapplicable. I
dissent from our failure to correct the panel’s manifest error.
I
In this section I provide background on the source of
Congress’s and the President’s authority to exclude aliens, the
Executive Order at issue here, and the proceedings in this
case. The informed reader may proceed directly to Part II.
A
“The exclusion of aliens is a fundamental act of
sovereignty.” United States ex rel. Knauff v. Shaughnessy,
338 U.S. 537, 542 (1950); see also Landon v. Plasencia,
459 U.S. 21, 32 (1982). Congress has the principal power to
control the nation’s borders, a power that follows naturally
from its power “[t]o establish an uniform rule of
Naturalization,” U.S. Const. art. I, § 8, cl. 4, and from its
authority to “regulate Commerce with foreign Nations,” id.
art. I, § 8, cl. 3, and to “declare War,” id. art. I, § 8, cl. 11.
See Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414 (2003);
Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952)
(“[A]ny policy toward aliens is vitally and intricately
interwoven with contemporaneous policies in regard to the
conduct of foreign relations [and] the war power . . . .”). The
President likewise has some constitutional claim to regulate
the entry of aliens into the United States. “Although the
source of the President’s power to act in foreign affairs does
not enjoy any textual detail, the historical gloss on the
‘executive Power’ vested in Article II of the Constitution has
recognized the President’s ‘vast share of responsibility for the

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STATE OF WASHINGTON V. TRUMP 5
conduct of our foreign relations.’” Garamendi, 539 U.S. at
414 (quoting Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 610–11 (1952) (Frankfurter, J., concurring)).
The foreign policy powers of the presidency derive from the
President’s role as “Commander in Chief,” U.S. Const. art. II,
§ 2, cl. 1, his right to “receive Ambassadors and other public
Ministers,” id. art. II, § 3, and his general duty to “take Care
that the Laws be faithfully executed,” id. See Garamendi,
539 U.S. at 414. The “power of exclusion of aliens is also
inherent in the executive.” Knauff, 338 U.S. at 543.
In the Immigration and Nationality Act of 1952, Congress
exercised its authority to prescribe the terms on which aliens
may be admitted to the United States, the conditions on which
they may remain within our borders, and the requirements for
becoming naturalized U.S. citizens. 8 U.S.C. § 1101 et seq.
Congress also delegated authority to the President to suspend
the entry of “any class of aliens” as he deems appropriate:
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
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.

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STATE OF WASHINGTON V. TRUMP 6
Id. § 1182(f). Many presidents have invoked the authority of
§ 1182(f) to bar the entry of broad classes of aliens from
identified countries.2
In Executive Order No. 13769, the President exercised the
authority granted in § 1182(f). Exec. Order No. 13769 § 3(c)
(Jan. 27, 2017), revoked by Exec. Order No. 13780 § 1(i)
(Mar. 6, 2017). The Executive Order covered a number of
subjects. Three provisions were particularly relevant to this
litigation. First, the Executive Order found that “the
immigrant and nonimmigrant entry into the United States of
aliens from [seven] countries . . . would be detrimental to the
interests of the United States” and ordered the suspension of
entry for nationals (with certain exceptions) from those
countries for 90 days. Id. The seven countries were Iran,
Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Second, it
directed the Secretary of State to suspend the U.S. Refugee
Admissions Program (USRAP) for 120 days. However,
exceptions could be made “on a case-by-case basis” in the
discretion of the Secretaries of State and Homeland Security.
Once USRAP resumed, the Secretary of State was “to
prioritize refugee claims made by individuals on the basis of
religious-based persecution, provided that the religion of the
individual [was] a minority religion in the individual’s
country of nationality.” Id. § 5(a), (b), (e). Third, it
2 See, e.g., Exec. Order No. 12324 (Sept. 29, 1981) (Reagan and
Haiti); Proclamation No. 5517 (Aug. 22, 1986) (Reagan and Cuba); Exec.
Order No. 12807 (May 24, 1992) (George H.W. Bush and Haiti);
Proclamation No. 6958 (Nov. 22, 1996) (Clinton and Sudan);
Proclamation No. 7359 (Oct. 10, 2000) (Clinton and Sierra Leone); Exec.
Order No. 13276 (Nov. 15, 2002) (George W. Bush and Haiti); Exec.
Order No. 13692 (Mar. 8, 2015) (Obama and Venezuela); Exec. Order No.
13726 (Apr. 19, 2016) (Obama and Libya).

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STATE OF WASHINGTON V. TRUMP 7
suspended indefinitely the entry of Syrian refugees. Id. § 5(c).
B
Three days after the President signed the Executive Order,
the States of Washington and Minnesota brought suit in the
Western District of Washington seeking declaratory and
injunctive relief on behalf of their universities, businesses,
citizens, and residents that were affected by the Executive
Order in various ways. The States also sought a temporary
restraining order (TRO). On February 3, 2017, following a
hearing, the district court, without making findings of fact or
conclusions of law with respect to the merits of the suit,
issued a nationwide TRO against the enforcement of §§ 3(c),
5(a)–(c), (e). The district court proposed further briefing by
the parties and a hearing on the States’ request for a
preliminary injunction.3
The United States sought a stay of the district court’s
order pending an appeal. A motions panel of our court, on an
expedited basis (including oral argument by phone involving
four time zones), denied the stay. Washington v. Trump,
847 F.3d 1151 (9th Cir. 2017).
3 That same day, the district court for the District of Massachusetts
denied a preliminary injunction to petitioners challenging the Executive
Order on equal protection, Establishment Clause, due process, and APA
grounds. Louhghalam v. Trump, No. 17-10154-NMG, 2017 WL 479779
(D. Mass. Feb. 3, 2017). The following week, the district court for the
Eastern District of Virginia granted a preliminary injunction against
enforcement of the Executive Order in Virginia. The court’s sole grounds
were based on the Establishment Clause. Aziz v. Trump, No. 1:17-cv-116
(LMB/TCB), 2017 WL 580855 (E.D. Va. Feb. 13, 2017).

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STATE OF WASHINGTON V. TRUMP 8
Among other things, the panel drew three critical
conclusions. First, the panel held that, although we owe
deference to the political branches, we can review the
Executive Order for constitutionality under the same
standards as we would review challenges to domestic
policies. See id. at 1161–64. Second, the panel found that the
States were likely to succeed on their due process arguments
because “the Executive Order [does not] provide[] what due
process requires, such as notice and a hearing prior to
restricting an individual’s ability to travel.” Id. at 1164.
Third, the panel found that there were at least “significant
constitutional questions” under the Establishment Clause
raised by the fact that the seven countries identified in the
Executive Order are principally Muslim countries and the
President, before and after his election, made reference to “a
Muslim ban.” Id. at 1168.
In response to the panel’s decision not to stay the district
court’s TRO pending appeal, a judge of our court asked for en
banc review. The court invited the parties to comment on
whether the entire court should review the judgment. The
U.S. Department of Justice asked that the panel hold the
appeal while the administration considered the appropriate
next steps and vacate the opinion upon the issuance of any
new executive order. A majority of the court agreed to stay
the en banc process. In the end, the President issued a new
Executive Order on March 6, 2017, that referred to the
panel’s decision and addressed some of the panel’s concerns.
In light of the new Executive Order, the Department of
Justice moved to dismiss the appeal in this case. The panel

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STATE OF WASHINGTON V. TRUMP 9
granted the motion to dismiss but did not vacate its
precedential opinion.4
Ordinarily, when an appeal is dismissed because it has
become moot, any opinions previously issued in the case
remain on the books. U.S. Bancorp Mortg. Co. v. Bonner
Mall P’ship, 513 U.S. 18, 26 (1994) (“Judicial precedents are
presumptively correct and valuable to the legal community as
a whole. They . . . should stand unless a court concludes that
the public interest would be served by a vacatur.” (citation
omitted)). The court, however, has discretion to vacate its
opinion to “clear[] the path for future relitigation of the issues
between the parties,” United States v. Munsingwear, Inc.,
340 U.S. 36, 40 (1950), or where “exceptional circumstances
. . . counsel in favor of such a course,” U.S. Bancorp Mortg.,
513 U.S. at 29. We should have exercised that discretion in
this case because the panel made a fundamental error.5 It
neglected or overlooked critical cases by the Supreme Court
and by our court making clear that when we are reviewing
decisions about who may be admitted into the United States,
we must defer to the judgment of the political branches.6
4 Proceedings in the original suit filed by Washington and Minnesota
are still pending in the Western District of Washington. The State of
Hawaii also filed suit in the District of Hawaii and has asked for a TRO
enjoining the second Executive Order. See Plaintiffs’ Motion for
Temporary Restraining Order, Hawai’i v. Trump, No. 1:17-cv-00050-
DKW-KSC (D. Haw. Mar. 8, 2017), ECF No. 65.
5 We have previously said that it is procedurally proper for a judge “to
seek an en banc rehearing for the purpose of vacating [a panel’s]
decision.” United States v. Payton, 593 F.3d 881, 886 (9th Cir. 2010).
6 To be clear, the panel made several other legal errors. Its holding
that the States were likely to succeed on the merits of their procedural due
process claims confounds century-old precedent. And its unreasoned

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STATE OF WASHINGTON V. TRUMP 10
That does not mean that we have no power of judicial review
at all, but it does mean that our authority to second guess or
to probe the decisions of those branches is carefully
circumscribed. The panel’s analysis conflicts irreconcilably
with our prior cases. We had an obligation to vacate the
panel’s opinion in order to resolve that conflict and to provide
consistent guidance to district courts and future panels of this
court.
II
The panel began its analysis from two important
premises: first, that it is an “uncontroversial principle” that
we “owe substantial deference to the immigration and
national security policy determinations of the political
branches,” Washington, 847 F.3d at 1161; second, that courts
can review constitutional challenges to executive actions, see
id. at 1164. I agree with both of these propositions.
Unfortunately, that was both the beginning and the end of the
deference the panel gave the President.
How do we reconcile these two titan principles of
constitutional law? It is indeed an “uncontroversial
principle” that courts must defer to the political judgment of
the President and Congress in matters of immigration policy.
The Supreme Court has said so, plainly and often. See, e.g.,
Mathews v. Diaz, 426 U.S. 67, 81 (1976) (“[T]he
assumption that courts should simply plop Establishment Clause cases
from the domestic context over to the foreign affairs context ignores the
realities of our world. But these errors are not what justified vacatur.
Instead, it is the panel’s treatment of Kleindienst v. Mandel, 408 U.S. 753
(1972), that called for an extraordinary exercise of our discretion to vacate
the panel’s opinion.

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STATE OF WASHINGTON V. TRUMP 11
responsibility for regulating the relationship between the
United States and our alien visitors has been committed to the
political branches of the Federal Government.”); Harisiades,
342 U.S. at 590 (“[N]othing in the structure of our
Government or the text of our Constitution would warrant
judicial review by standards which would require us to equate
our political judgment with that of Congress.”); Shaughnessy
v. United States ex rel. Mezei, 345 U.S. 206, 210 (1953)
(“Courts have long recognized the power to expel or exclude
aliens as a fundamental sovereign attribute exercised by the
Government’s political departments largely immune from
judicial control.”); Henderson v. Mayor of N.Y., 92 U.S.
(2 Otto) 259, 270–71 (1876). On the other hand, it seems
equally fundamental that the judicial branch is a critical
backstop to defend the rights of individuals against the
excesses of the political branches. See INS v. Chadha,
462 U.S. 919, 941 (1983) (reviewing Congress’s use of power
over aliens to ensure that “the exercise of that authority does
not offend some other constitutional restriction” (quoting
Buckley v. Valeo, 424 U.S. 1, 132 (1976))).
The Supreme Court has given us a way to analyze these
knotty questions, but it depends on our ability to distinguish
between two groups of aliens: those who are present within
our borders and those who are seeking admission. As the
Court explained in Leng May Ma v. Barber,
It is important to note at the outset that our
immigration laws have long made a
distinction between those aliens who have
come to our shores seeking admission, . . . and
those who are within the United States after
an entry, irrespective of its legality. In the
latter instance the Court has recognized

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STATE OF WASHINGTON V. TRUMP 12
additional rights and privileges not extended
to those in the former category who are
merely “on the threshold of initial entry.”
357 U.S. 185, 187 (1958) (quoting Mezei, 345 U.S. at 212).
The panel did not recognize that critical distinction and it led
to manifest error. The panel’s decision is not only
inconsistent with clear Supreme Court authority, but the panel
missed a whole bunch of our own decisions as well.
A
The appropriate test for judging executive and
congressional action affecting aliens who are outside our
borders and seeking admission is set forth in Kleindienst v.
Mandel, 408 U.S. 753 (1972). In Mandel, the government
had denied a visa to a Marxist journalist who had been invited
to address conferences at Columbia, Princeton, and Stanford,
among other groups. Mandel and American university
professors brought facial and as-applied challenges under the
First and Fifth Amendments. The Court first made clear that
Mandel himself, “as an unadmitted and nonresident alien, had
no constitutional right of entry.” Id. at 762. Then it
addressed the First Amendment claims of the professors who
had invited him. Recognizing that “First Amendment rights
[were] implicated” in the case, the Court declined to revisit
the principle that the political branches may decide whom to
admit and whom to exclude. Id. at 765. It concluded that
when the executive has exercised its authority to exclude
aliens “on the basis of a facially legitimate and bona fide
reason, the courts will neither look behind the exercise of that
discretion, nor test it by balancing its justification against the
First Amendment interests of those who seek personal
communication with the applicant.” Id. at 770.

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STATE OF WASHINGTON V. TRUMP 13
In this case, the government argued that Mandel provided
the proper framework for analyzing the States’ claims. The
panel, however, tossed Mandel aside because it involved only
a decision by a consular officer, not the President. See
Washington, 847 F.3d at 1162 (“The present case, by
contrast, is not about the application of a specifically
enumerated congressional policy to the particular facts
presented in an individual visa application. Rather the States
are challenging the President’s promulgation of sweeping
immigration policy.”). Two responses. First, the panel’s
declaration that we cannot look behind the decision of a
consular officer, but can examine the decision of the
President stands the separation of powers on its head. We
give deference to a consular officer making an individual
determination, but not the President when making a broad,
national security-based decision? With a moment’s thought,
that principle cannot withstand the gentlest inquiry, and we
have said so. See Bustamante v. Mukasey, 531 F.3d 1059,
1062 n.1 (9th Cir. 2008) (“We are unable to distinguish
Mandel on the grounds that the exclusionary decision
challenged in that case was not a consular visa denial, but
rather the Attorney General’s refusal to waive Mandel’s
inadmissibility. The holding is plainly stated in terms of the
power delegated by Congress to ‘the Executive.’ The
Supreme Court said nothing to suggest that the reasoning or
outcome would vary according to which executive officer is
exercising the Congressionally-delegated power to
exclude.”). Second, the promulgation of broad policy is
precisely what we expect the political branches to do;
Presidents rarely, if ever, trouble themselves with decisions
to admit or exclude individual visa-seekers. See Knauff,
338 U.S. at 543 (“[B]ecause the power of exclusion of aliens
is also inherent in the executive department of the sovereign,
Congress may in broad terms authorize the executive to

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STATE OF WASHINGTON V. TRUMP 14
exercise the power . . . for the best interests of the country
during a time of national emergency.”). If the panel is
correct, it just wiped out any principle of deference to the
executive.
Worse, the panel’s decision missed entirely Fiallo v. Bell,
430 U.S. 787 (1977), and Fiallo answers the panel’s reasons
for brushing off Mandel. In Fiallo, the plaintiff brought a
facial due process challenge to immigration laws giving
preferential treatment to natural mothers of illegitimate
children. As in Mandel, the constitutional challenge in Fiallo
was “based on [the] constitutional rights of citizens.” Id. at
795. The Court acknowledged that the challenge invoked
“‘double-barreled’ discrimination based on sex and
illegitimacy.” Id. at 794. Either ground, if brought in a suit
in a domestic context, would have invoked some kind of
heightened scrutiny. See Craig v. Boren, 429 U.S. 190, 197
(1976) (sex discrimination); Trimble v. Gordon, 430 U.S.
762, 769 (1977) (illegitimacy). Rejecting the claim that “the
Government’s power in this area is never subject to judicial
review,” Fiallo, 430 U.S. at 795–96, 795 n.6, the Court held
that Mandel’s “facially legitimate and bona fide reason” test
was the proper standard: “We can see no reason to review the
broad congressional policy choice at issue here under a more
exacting standard than was applied in Kleindienst v. Mandel,
a First Amendment case.” Id. at 795; see also id. at 794
(rejecting “the suggestion that more searching judicial
scrutiny is required”). Importantly, the Court reached that
conclusion despite the fact the immigration laws at issue
promulgated “sweeping immigration policy,” Washington,
847 F.3d at 1162, just as the Executive Order did.
The panel’s holding that “exercises of policymaking
authority at the highest levels of the political branches are

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STATE OF WASHINGTON V. TRUMP 15
plainly not subject to the Mandel standard,” id., is simply
irreconcilable with the Supreme Court’s holding that it could
“see no reason to review the broad congressional policy
choice at issue [there] under a more exacting standard than
was applied in Kleindienst v. Mandel,” Fiallo, 430 U.S. at
795.
Fiallo wasn’t the only Supreme Court case applying
Mandel that the panel missed. In Kerry v. Din, 135 S. Ct.
2128 (2015), the Court confronted a case in which Din (a
U.S. citizen) claimed that the government’s refusal to grant
her Afghani husband a visa violated her own constitutional
right to live with her husband. A plurality held that Din had
no such constitutional right. Id. at 2131 (plurality opinion).
Justice Kennedy, joined by Justice Alito, concurred in the
judgment, and we have held that his opinion is controlling.
Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir.
2016). For purposes of the case, Justice Kennedy assumed
that Din had a protected liberty interest, but he rejected her
claim to additional procedural due process. “The conclusion
that Din received all the process to which she was entitled
finds its most substantial instruction in the Court’s decision
in Kleindienst v. Mandel.” Din, 135 S. Ct. at 2139 (Kennedy,
J., concurring in the judgment) (citation omitted). After
reciting Mandel’s facts and holding, Justice Kennedy
concluded that “[t]he reasoning and the holding in Mandel
control here. That decision was based upon due consideration
of the congressional power to make rules for the exclusion of
aliens, and the ensuing power to delegate authority to the
Attorney General to exercise substantial discretion in that
field.” Id. at 2140. Once the executive makes a decision “on
the basis of a facially legitimate and bona fide reason,” the
courts may “‘neither look behind the exercise of that
discretion, nor test it by balancing its justification against’ the

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STATE OF WASHINGTON V. TRUMP 16
constitutional interests of citizens the visa denial might
implicate.” Id. (quoting Mandel, 408 U.S. at 770). Applying
Mandel, Justice Kennedy concluded that “the Government
satisfied any obligation it might have had to provide Din with
a facially legitimate and bona fide reason for its action when
it provided notice that her husband was denied admission to
the country under [8 U.S.C.] § 1182(a)(3)(B).” Id. at 2141.
No more was required, and “[b]y requiring the Government
to provide more, the [Ninth Circuit] erred in adjudicating
Din’s constitutional claims.” Id.
The importance and continuing applicability of the
framework set out in Mandel and applied in Fiallo and Din
has been recognized in circumstances remarkably similar to
the Executive Order. After the attacks of September 11,
2001, the Attorney General instituted the National Security
Entry-Exit Registration System. That program required non-
immigrant alien males (residing in the United States) over the
age of sixteen from twenty-five countries—twenty-four
Muslim-majority countries plus North Korea—to appear for
registration and fingerprinting. One court referred to the
program as “enhanced monitoring.” See Rajah v. Mukasey,
544 F.3d 427, 433–34, 439 (2d Cir. 2008) (describing the
program).7 The aliens subject to the program filed a series of
suits in federal courts across the United States. They
contended that the program unconstitutionally discriminated
against them on the basis of “their religion, ethnicity, gender,
and race.” Id. at 438. Similar to the claims here, the
petitioners argued that the program “was motivated by an
improper animus toward Muslims.” Id. at 439.
7 The aliens subject to the program were designated by country in a
series of notices. The first notice covered five countries: Iran, Iraq,
Libya, Sudan, and Syria. See Rajah, 544 F.3d at 433 n.3.

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STATE OF WASHINGTON V. TRUMP 17
Citing Fiallo and applying the Mandel test, the Second
Circuit held that “[t]he most exacting level of scrutiny that we
will impose on immigration legislation is rational basis
review.” Id. at 438 (alteration in original) (citation omitted).
The court then found “a facially legitimate and bona fide
reason for” the registration requirements because the
countries were “selected on the basis of national security
criteria.” Id. at 438–39. The court rejected as having “no
basis” the petitioners’ claim of religious animus. Id. at 439.
The court observed that “one major threat of terrorist attacks
comes from radical Islamic groups.” Id. It added:
Muslims from non-specified countries were
not subject to registration. Aliens from the
designated countries who were qualified to be
permanent residents in the United States were
exempted whether or not they were Muslims.
The program did not target only Muslims:
non-Muslims from the designated countries
were subject to registration.
Id. Finally, the court refused to review the program for “its
effectiveness and wisdom” because the court “ha[d] no way
of knowing whether the Program’s enhanced monitoring of
aliens ha[d] disrupted or deterred attacks. In any event, such
a consideration [was] irrelevant because an ex ante rather
than ex post assessment of the Program [was] required under
the rational basis test.” Id. The Second Circuit thus
unanimously rejected the petitioners’ constitutional
challenges and “join[ed] every circuit that ha[d] considered
the issue in concluding that the Program [did] not violate
Equal Protection guarantees.” Id.; see Malik v. Gonzales,
213 F. App’x 173, 174–75 (4th Cir. 2007); Kandamar v.
Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Zafar v. U.S.

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STATE OF WASHINGTON V. TRUMP 18
Attorney Gen., 461 F.3d 1357, 1367 (11th Cir. 2006);
Hadayat v. Gonzales, 458 F.3d 659, 664–65 (7th Cir. 2006);
Shaybob v. Attorney Gen., 189 F. App’x 127, 130 (3d Cir.
2006); Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006);
see also Adenwala v. Holder, 341 F. App’x 307, 309 (9th Cir.
2009); Roudnahal v. Ridge, 310 F. Supp. 2d 884, 892 (N.D.
Ohio 2003). The panel was oblivious to this important
history.
The combination of Mandel, Fiallo, and Din, and the
history of their application to the post-9/11 registration
program, is devastating to the panel’s conclusion that we can
simply apply ordinary constitutional standards to immigration
policy. Compounding its omission, the panel missed all of
our own cases applying Mandel to constitutional challenges
to immigration decisions. See, e.g., Cardenas, 826 F.3d at
1171 (discussing Mandel and Din extensively as the
“standard of judicial review applicable to the visa denial”
where petitioner alleged due process and equal protection
violations); An Na Peng v. Holder, 673 F.3d 1248, 1258 (9th
Cir. 2012) (applying the Mandel standard to reject a lawful
permanent resident’s equal protection challenge against a
broad policy); Bustamante, 531 F.3d at 1060 (applying
Mandel to a due process claim and describing Mandel as “a
highly constrained review”); Padilla-Padilla v. Gonzales,
463 F.3d 972, 978–79 (9th Cir. 2006) (applying Mandel to a
due process challenge to the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996); Nadarajah v.
Gonzales, 443 F.3d 1069, 1082 (9th Cir. 2006) (using the
Mandel standard to address an alien’s challenge to the
executive’s denial of parole to temporarily enter the United
States, and finding the executive’s reasons “were not facially
legitimate and bona fide”); Barthelemy v. Ashcroft, 329 F.3d
1062, 1065 (9th Cir. 2003) (applying Fiallo to a facial equal

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STATE OF WASHINGTON V. TRUMP 19
protection challenge based on “former marital status”); Noh
v. INS, 248 F.3d 938, 942 (9th Cir. 2001) (applying Mandel
when an alien challenged the revocation of his visa); see also
Andrade-Garcia v. Lynch, 828 F.3d 829, 834–35 (9th Cir.
2016) (discussing review under Mandel). Like the Second
Circuit in Rajah, we too have repeatedly “equated [the
Mandel] standard of review with rational basis review.”
Barthelemy, 329 F.3d at 1065; see An Na Peng, 673 F.3d at
1258; Ablang v. Reno, 52 F.3d 801, 805 (9th Cir. 1995). It is
equally clear from our cases that we apply Mandel whether
we are dealing with an individual determination by the
Attorney General or a consular officer, as in Mandel and Din,
or with broad policy determinations, as in Fiallo. The panel’s
clear misstatement of law justifies vacating the opinion.
B
Applying Mandel here, the panel’s error becomes
obvious: the Executive Order was easily “facially legitimate”
and supported by a “bona fide reason.” As I have quoted
above, § 1182(f) authorizes the President to suspend the entry
of “any class of aliens” as he deems appropriate:
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
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.

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STATE OF WASHINGTON V. TRUMP 20
8 U.S.C. § 1182(f).8 Invoking this authority and making the
requisite findings, the President “proclaim[ed] that the
immigrant and nonimmigrant entry into the United States of
aliens from [seven] countries . . . would be detrimental to the
interests of the United States,” and he suspended their entry
for 90 days. Exec. Order No. 13769 § 3(c). As the Executive
Order further noted, the seven countries—Iraq, Iran, Libya,
Somalia, Sudan, Syria, and Yemen—had all been previously
identified by either Congress, the Secretary of State, or the
Secretary of Homeland Security (all in prior administrations)
as “countries or areas of concern” because of terrorist
activity.9 The President noted that we “must be vigilant” in
light of “deteriorating conditions in certain countries due to
8 Regrettably, the panel never once mentioned § 1182(f), nor did it
acknowledge that when acting pursuant it to it, the government’s
“authority is at its maximum, for it includes all that [the President]
possesses in his own right plus all the Congress can delegate.”
Youngstown, 343 U.S. at 635 (Jackson, J., concurring); see Knauff,
338 U.S. at 542 (“When Congress prescribes a procedure concerning the
admissibility of aliens, it is not dealing alone with a legislative power. It
is implementing an inherent executive power.”).
9 Iraq and Syria: Congress has disqualified nationals or persons who
have been present in Iraq and Syria from eligibility for the Visas Waiver
Program. 8 U.S.C. § 1187(a)(12)(A)(i)(I), (ii)(I).
Iran, Sudan, and Syria: Under § 1187(a)(12)(A)(i)(II), (ii)(II), the
Secretary of State has designated Iran, Sudan, and Syria as state sponsors
of terrorism because the “government . . . repeatedly provided support of
acts of international terrorism.”
Libya, Somalia, and Yemen: Similarly, under
§ 1187(a)(12)(A)(i)(III), (ii)(III), the Secretary of Homeland Security has
designated Libya, Somalia, and Yemen as countries where a foreign
terrorist organization has a significant presence in the country or where the
country is a safe haven for terrorists.

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STATE OF WASHINGTON V. TRUMP 21
war, strife, disaster, and civil unrest.” Id. § 1. The
President’s actions might have been more aggressive than
those of his predecessors, but that was his prerogative. Thus,
the President’s actions were supported by a “facially
legitimate and bona fide” reason.
Justice Kennedy indicated in Din that it might have been
appropriate to “look behind” the government’s exclusion of
Din’s husband if there were “an affirmative showing of bad
faith on the part of the consular officer who denied [the
husband’s] visa.” Din, 135 S. Ct. at 2141 (Kennedy, J.,
concurring in the judgment). Because the panel never
discussed Din, let alone claimed that Justice Kennedy’s
comment might allow us to peek behind the facial legitimacy
of the Executive Order, I need not address the argument in
detail. Suffice it to say, it would be a huge leap to suggest
that Din’s “bad faith” exception also applies to the motives of
broad-policy makers as opposed to those of consular officers.
Even if we have questions about the basis for the
President’s ultimate findings—whether it was a “Muslim
ban” or something else—we do not get to peek behind the
curtain. So long as there is one “facially legitimate and bona
fide” reason for the President’s actions, our inquiry is at an
end. As the Court explained in Reno v. American-Arab Anti-
Discrimination Committee, 525 U.S. 471 (1999):
The Executive should not have to disclose its
“real” reasons for deeming nationals of a
particular country a special threat—or indeed
for simply wishing to antagonize a particular
foreign country by focusing on that country’s
nationals—and even it if did disclose them a
court would be ill equipped to determine their

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STATE OF WASHINGTON V. TRUMP 22
authenticity and utterly unable to assess their
adequacy.
Id. at 491; see Mezei, 345 U.S. at 210–12; Knauff, 338 U.S.
at 543.
The panel faulted the government for not coming forward
in support of the Executive Order with evidence—including
“classified information.” Washington, 847 F.3d at 1168 &
nn.7–8. First, that is precisely what the Court has told us we
should not do. Once the facial legitimacy is established, we
may not “look behind the exercise of that discretion.” Fiallo,
430 U.S. at 795–96 (quoting Mandel, 408 U.S. at 770). The
government may provide more details “when it sees fit” or if
Congress “requir[es] it to do so,” but we may not require it.
Din, 135 S. Ct. at 2141 (Kennedy, J., concurring in the
judgment). Second, that we have the capacity to hold the
confidences of the executive’s secrets does not give us the
right to examine them, even under the most careful
conditions. As Justice Kennedy wrote in Din, “in light of the
national security concerns the terrorism bar addresses[,] . . .
even if . . . sensitive facts could be reviewed by courts in
camera, the dangers and difficulties of handling such delicate
security material further counsel against requiring
disclosure.” Id.; see Chi. & S. Air Lines v. Waterman S.S.
Corp., 333 U.S. 103, 111 (1948) (“It would be intolerable that
courts, without the relevant information, should review and
perhaps nullify actions of the Executive taken on information
properly held secret. Nor can courts sit in camera in order to
be taken into executive confidences.”). When we apply the
correct standard of review, the President does not have to
come forward with supporting documentation to explain the
basis for the Executive Order.

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STATE OF WASHINGTON V. TRUMP 23
The panel’s errors are many and obvious. Had it applied
the proper standard, the panel should have stopped here and
issued the stay of the district court’s TRO. Instead, the panel
opinion stands contrary to well-established separation-of-
powers principles. We have honored those principles in our
prior decisions; the panel failed to observe them here. If for
no other reason, we should have gone en banc to vacate the
panel’s opinion in order to keep our own decisions straight.
III
We are all acutely aware of the enormous controversy and
chaos that attended the issuance of the Executive Order.
People contested the extent of the national security interests
at stake, and they debated the value that the Executive Order
added to our security against the real suffering of potential
emigres. As tempting as it is to use the judicial power to
balance those competing interests as we see fit, we cannot let
our personal inclinations get ahead of important, overarching
principles about who gets to make decisions in our
democracy. For better or worse, every four years we hold a
contested presidential election. We have all found ourselves
disappointed with the election results in one election cycle or
another. But it is the best of American traditions that we also
understand and respect the consequences of our elections.
Even when we disagree with the judgment of the political
branches—and perhaps especially when we disagree—we
have to trust that the wisdom of the nation as a whole will
prevail in the end.
Above all, in a democracy, we have the duty to preserve
the liberty of the people by keeping the enormous powers of
the national government separated. We are judges, not
Platonic Guardians. It is our duty to say what the law is, and

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STATE OF WASHINGTON V. TRUMP 24
the meta-source of our law, the U.S. Constitution, commits
the power to make foreign policy, including the decisions to
permit or forbid entry into the United States, to the President
and Congress. We will yet regret not having taken this case
en banc to keep those lines of authority straight.
Finally, I wish to comment on the public discourse that
has surrounded these proceedings. The panel addressed the
government’s request for a stay under the worst conditions
imaginable, including extraordinarily compressed briefing
and argument schedules and the most intense public scrutiny
of our court that I can remember. Even as I dissent from our
decision not to vacate the panel’s flawed opinion, I have the
greatest respect for my colleagues. The personal attacks on
the distinguished district judge and our colleagues were out
of all bounds of civic and persuasive discourse—particularly
when they came from the parties. It does no credit to the
arguments of the parties to impugn the motives or the
competence of the members of this court; ad hominem attacks
are not a substitute for effective advocacy. Such personal
attacks treat the court as though it were merely a political
forum in which bargaining, compromise, and even
intimidation are acceptable principles. The courts of law
must be more than that, or we are not governed by law at all.
I dissent, respectfully.

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