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
AMENDED
ORDER
Filed March 17, 2017
Before: William C. Canby, Jr., Richard R. Clifton,
sand Michelle T. Friedland, Circuit Judges.
Order;
Concurrence by Judge Reinhardt;
Concurrence by Judge Berzon;
Dissent by Judge Kozinski;
Dissent by Judge Bybee;
Dissent by Judge Bea

-- 1 of 43 --

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 a concurrence from
Judge Reinhardt, a concurrence from Judge Berzon, a dissent
from Judge Kozinski, a dissent from Judge Bybee, and a
dissent from Judge Bea. No further opinions will be filed.
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

-- 2 of 43 --

STATE OF WASHINGTON V. TRUMP 3
it. Finally, I am proud to be a part of this court and a judicial
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.
Judge Kozinski’s diatribe, filed today, confirms that a
small group of judges, having failed in their effort to undo
this court’s decision with respect to President Trump’s first
Executive Order, now seek on their own, under the guise of
a dissent from the denial of en banc rehearing of an order of
voluntary dismissal, to decide the constitutionality of a
second Executive Order that is not before this court. That is
hardly the way the judiciary functions. Peculiar indeed!
BERZON, Circuit Judge, concurring in the denial of
reconsideration en banc:
I concur in the court’s denial of rehearing en banc
regarding vacatur. I have full confidence in the panel’s
decision. I write to emphasize that, although one would think
otherwise from the three dissents from denial of rehearing en
banc, judges are empowered to decide issues properly before
them, not to express their personal views on legal questions
no one has asked them. There is no appeal currently before
us, and so no stay motion pending that appeal currently
before us either. In other words, all the merits commentary
in the dissents filed by a small minority of the judges of this
court is entirely out of place.
Here is the background: A three-judge panel of this court
decided that the Government was not entitled to a stay
pending appeal of the district court’s Temporary Restraining

-- 3 of 43 --

STATE OF WASHINGTON V. TRUMP 4
Order enjoining enforcement of the President’s January 27,
2017 Executive Order. Washington v. Trump, 847 F.3d 1151,
1156 (9th Cir. 2017). The Government chose not to
challenge the panel’s order further but instead to draft a
revised Executive Order, revoking the one that was before
this court’s panel. Exec. Order 13780 of March 6, 2017
§§ 1(i), 13, 82 Fed. Reg. 13209 (published Mar. 9, 2017).
That Order was expressly premised on the panel opinion. Id.
§ 1(c), (i). The Government has since elected to dismiss this
appeal, and with it its stay request; it filed an unopposed
motion to dismiss, which we granted, and did not in that
motion ask that the panel, or an en banc court, vacate the
panel’s opinion.1
So there is now no live controversy before our court
regarding either the merits of the underlying case or the
propriety of the original restraining order. “In our system of
government, courts have no business deciding legal disputes
or expounding on law in the absence of . . . a case or
controversy.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726
(2013) (internal quotation marks omitted) (citing
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)).
One judge of the court nonetheless called for a vote of the
active judges as to whether to convene an en banc court for
the sole purpose of vacating the panel’s opinion. As the
panel’s March 15, 2017 order, denying rehearing en banc,
notes, vacating an opinion where the losing party’s voluntary
actions have mooted the appeal is ordinarily improper. See
1 On the contrary, both parties have since relied on the opinion in
staking out their positions. See Exec. Order 13780 § 1(c), (i); Resp. to
Defs.’ Notice of Filing of Exec. Order at 2–11, Washington v. Trump, No.
2:17-cv-00141-JLR (W.D. Wash. Mar. 9, 2017).

-- 4 of 43 --

STATE OF WASHINGTON V. TRUMP 5
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18,
25–27 (1994); United States v. Payton, 593 F.3d 881, 883–86
(9th Cir. 2010). And as Judge Bybee’s dissent reflects, the
only justification offered for vacating the opinion was a
disagreement on the merits.
It is simply not an “exceptional circumstance[]” justifying
the “extraordinary remedy of vacatur” that members of our
court disagree with a panel opinion. See Bonner Mall,
513 U.S. at 26, 29. I am aware of no instance in which we
have convened an en banc panel to vacate a precedential
opinion on the basis of its merits, where no party seeks
further appellate review or vacatur. Compare Animal Legal
Def. Fund v. Veneman, 490 F.3d 725, 725–27 (9th Cir. 2007)
(en banc) (Bybee, J., concurring) (vacating a panel opinion in
light of a settlement agreement dependent on vacatur reached
after a majority of the court already had voted to take the case
en banc and designated the panel’s opinion non-precedential).
Rather, it is “inappropriate . . . to vacate mooted cases, in
which we have no constitutional power to decide the merits,
on the basis of assumptions about the merits.” Bonner Mall,
513 U.S. at 27.
We as a court make the vast majority of our decisions
through three-judge panels, and we abide by the decisions of
those panels absent a decision by a majority of the active
judges that there is good reason to reconsider the case with a
larger, eleven-judge panel, determined by lot. See Fed. R.
App. P. 35; Ninth Cir. R. 35-3; Ninth Cir. Gen. Order
5.1–5.5. Reconsidering a case before an en banc panel after
full argument and coming to a new, reasoned
decision—which might reach the same result as the earlier
panel decision or might conclude otherwise—is an entirely
different matter from what was sought here: wiping out the

-- 5 of 43 --

STATE OF WASHINGTON V. TRUMP 6
panel’s decision and leaving a vacuum. The en banc court
would have no authority whatever to opine on the merits of
the case or the propriety of the district court’s stay, as there
is simply no live appeal before us.
Article III of the United States Constitution precludes us
from revisiting the issues addressed in the panel opinion at
this point, as any decision rendered by the en banc court
necessarily would be advisory. See Already LLC, 133 S. Ct.
at 726. A few dissenting colleagues have nonetheless used
the decision by the active judges of the court to decline to
rewrite history as the occasion to attack the panel opinion on
myriad grounds. As there is nothing pending before us, it
would be entirely inappropriate to respond in detail—which,
I presume, is precisely why the panel did not do so.
In some ways that is too bad. There is much to discuss,
and such discussion would show that the panel’s opinion was
quite correct.
To take but one example: The cases Judge Bybee cites
regarding the applicability of Kleindienst v. Mandel, 408 U.S.
753 (1972), do not govern the case as it came to the panel.
None addresses whether the “facially legitimate and bona fide
reason” standard articulated in Mandel applies to executive
action that categorically revokes permission to enter or
reenter the country already granted by the Executive Branch.
See Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J.,
concurring in the judgment); Fiallo v. Bell, 430 U.S. 787,
792–95 (1977); Cardenas v. United States, 826 F.3d 1164,
1171–72 (9th Cir. 2016); An Na Peng v. Holder, 673 F.3d
1248, 1258 (9th Cir. 2012); Bustamante v. Mukasey, 531 F.3d
1059, 1062 (9th Cir. 2008); Padilla-Padilla v. Gonzales,
463 F.3d 972, 978–79 (9th Cir. 2006); Nadarajah v.

-- 6 of 43 --

STATE OF WASHINGTON V. TRUMP 7
Gonzales, 443 F.3d 1069, 1082 (9th Cir. 2006); Barthelemy
v. Ashcroft, 329 F.3d 1062, 1065–66 (9th Cir. 2003); Noh v.
INS, 248 F.3d 938, 942 (9th Cir. 2001). That the Second
Circuit applied Mandel’s test to a program requiring certain
non-immigrants to provide information to authorities (and to
face removal only after undergoing “generally applicable
legal [removal] proceedings to enforce pre-existing
immigration laws”), see Rajah v. Mukasey, 544 F.3d 427, 439
(2d Cir. 2008), in no way portends that application of Mandel
was appropriate here. The question before our panel, unlike
the one in Rajah, concerned a sweeping Executive Order that
barred from entry whole groups of legal permanent residents
and visa holders, among many others, without any
individualized determination regarding the revocation.
Presumably recognizing the weight of these individuals’
constitutional interests, the President excepted them from the
revised Executive Order. See Exec. Order 13780 § 3.
Judges Kozinski and Bea likewise used the filing of the
order denying rehearing en banc as to the question of vacating
the panel opinion as a platform for providing their personal
views as to the merits of that opinion. Both concern
themselves with issues the panel expressly did not finally
resolve. See Bea, J., dissenting from denial of rehearing en
banc, at 38–42 (discussing parens patriae standing);
Kozinski, J., dissenting from denial of rehearing en banc, at
10–14 (discussing the Establishment Clause); Washington,
847 F.3d at 1161 n.5, 1168 (explicitly declining to reach the
questions of parens patriae standing and, after outlining the
parameters of the appropriate Establishment Clause analysis,
not coming to rest on the likelihood of success with respect
to that issue). Further, Judge Kozinski expresses at some
length his unhappiness with the invocation of the panel’s
Establishment Clause analysis in a recent district court order,

-- 7 of 43 --

STATE OF WASHINGTON V. TRUMP 8
once again venturing an opinion on an appeal not before
us—in this instance, not because the appeal was withdrawn
but because none has yet been filed.2
There will be ample opportunity, and probably soon, see
Order Granting Motion for Temporary Restraining Order,
Hawaii v. Trump, No. 1:17-cv-00050 DKW-KSC (D. Haw.
Mar. 15, 2017), for further review of the important issues
raised by the President’s Executive Orders. And it is
apparent from the Government’s delay in promulgating a new
Executive Order, and in the ten-day delay in implementation
within the revised Order, see Exec. Order 13780 § 14, that no
overwhelming exigency counsels in favor of abandoning the
ordinary process of adversarial appellate review.
I well understand the importance of the cases concerning
these Executive Orders. They raise critical questions
concerning the reach of executive and judicial authority, and
they could profoundly affect the lives of our citizens, our
communities, and our position in the world. It is their very
seriousness that, in my view, commands that we as judges
speak about them when we have authority to do so, which is
when we are asked by litigants to settle a dispute. The court
2 Judge Kozinski also contests the scope of the Temporary
Restraining Order the panel declined to stay, observing that relatively few
of the affected individuals have lawful status. Again, this was not the
occasion to opine on the contours of a now-moot injunction. And,
contrary to Judge Kozinski’s representation, the number of individuals
covered directly by the panel’s due process analysis was
substantial—there were tens-of-thousands of individuals whose already
approved visas were revoked. See Mica Rosenberg & Lesley Wroughton,
Trump’s Travel Ban Has Revoked 60,000 Visas for Now, Reuters, Feb. 3,
2017, http://www.reuters.com/article/us-usa-immigration-visas-
idUSKBN15I2EW (citing figures provided by the Government).

-- 8 of 43 --

STATE OF WASHINGTON V. TRUMP 9
at large has not been asked. So my dissenting colleagues
should not be engaging in a one-sided attack on a decision by
a duly constituted panel of this court.
We will have this discussion, or one like it. But not now.
KOZINSKI, Circuit Judge, with whom Circuit Judges
BYBEE, CALLAHAN, BEA and IKUTA join, dissenting
from the denial of reconsideration en banc.
I write separately to highlight two peculiar features of the
panel’s opinion. First, the panel’s reasoning rests solely on
Due Process. But the vast majority of foreigners covered by
the executive order have no Due Process rights.
Nevertheless, the district court enjoined the order’s travel
provisions in their entirety, even as applied to the millions of
aliens who have no constitutional rights whatsoever because
they have never set foot on American soil. See Zadvydas v.
Davis, 533 U.S. 678, 693 (2001); United States v. Verdugo-
Urquidez, 494 U.S. 259, 269 (1990). In short, the panel
approves the district court’s nationwide injunction using a
rationale that applies to a small percentage of those covered
by the President’s order.
The panel itself seems to acknowledge this strange state
of affairs when it notes that there “might be persons covered”
by the district court’s restraining order who have no Due
Process claims. Panel Order at 23. “Might” indeed! The
overwhelming majority of the hundreds of millions of people
covered by the order lack Due Process claims; only a tiny
proportion have been accorded lawful status. Yet the panel
offers no explanation for allowing the district court’s

-- 9 of 43 --

STATE OF WASHINGTON V. TRUMP 10
extraordinarily broad restraining order to stand in full. This
St. Bernard is being wagged by a flea on its tail.
Because we have an obligation to maintain as much of the
order as is legal, we normally ask: Can we keep it
operational in a way that avoids constitutional conflict? The
law of our circuit is that we consider the severability of an
executive order just as we would consider the severability of
a statute. See Matter of Reyes, 910 F.2d 611, 613 (9th Cir.
1990); see also Minnesota v. Mille Lacs Band of Chippewa
Indians, 526 U.S. 172, 191 (1999) (assuming without
deciding that the same severability analysis applies to
executive orders as to statutes).1 If we applied this
framework to the executive order, we would “refrain from
invalidating more of the [order] than is necessary” and
“maintain the [order] in so far as it is valid.” Regan v. Time,
Inc., 468 U.S. 641, 652 (1984). This would have been easy:
We could have approved the injunction as to the relatively
few who have lawful status in the United States and allowed
the executive order to cover everyone else. This workable
solution would have respected the President’s prerogative to
regulate immigration as delegated to him by 8 U.S.C.
§ 1182(f), a provision about which the panel says nothing.
Which brings me to the second peculiar feature of the
opinion, a topic about which the panel says all too much: the
Establishment Clause. While its opinion does not come to
rest on this issue, the panel still sows chaos by holding “that
1 Indeed, we know that this executive order can be severed because
the district court did precisely that: It enjoined the five subsections of the
executive order relating to travel and left the other eleven intact.
Washington v. Trump, No. C17-0141JLR, 2017 WL 462040, at *2 (W.D.
Wash. Feb. 3, 2017) (order granting temporary restraining order).

-- 10 of 43 --

STATE OF WASHINGTON V. TRUMP 11
evidence of purpose beyond the face of the challenged law
may be considered in evaluating Establishment and Equal
Protection Clause claims.” Panel Order at 25. This matters
because one Establishment Clause test requires a showing of
secular purpose,2 and the panel gives its imprimatur to
considering the “numerous statements by the President” about
Muslims, most of them made before he was elected or took
office. Id. This holding has continued vitality: It was relied
on only days ago by a district judge in Hawaii who, in the
ongoing contretemps between our circuit and the executive,
enjoined the President’s new executive order nationwide. See
Hawaii v. Trump, No. 17-00050 DKW-KSC (D. Haw. Mar.
15, 2017) (order granting temporary restraining order).
Indeed, this holding is spreading like kudzu through the
federal courts. See Int’l Refugee Assistance Project v. Trump,
No. 17-00361-TDC, at 5, 29 (D. Md. Mar. 16, 2017).
Taking a cue from the panel’s opinion and citing a trove
of informal and unofficial statements from the President and
his advisers, see Hawaii at 33–37, the district judge found
that plaintiffs had shown “a strong likelihood of succeeding
on their claim” that the new order violates the Establishment
Clause, id. at 41. And why shouldn’t he? After all, the panel
made this evidentiary snark hunt the law of the Ninth Circuit;
the district judge was (in his own word) “commanded” to
follow it. Id. at 32.
2 I don’t endorse Lemon v. Kurtzman, 403 U.S. 602 (1971), as the
appropriate test in this context. Like Judge Bybee, I am puzzled why
Lemon should be plucked from domestic contexts and applied to laws
affecting immigration. See Bybee Dissental at 21 n.6. If we apply this
test so casually to immigration policy, I see no reason it should not apply
to every foreign policy decision made by the political branches, including
our dealings with various theocracies across the globe. I see many reasons
to resist this gross intrusion of the judicial power into foreign affairs.

-- 11 of 43 --

STATE OF WASHINGTON V. TRUMP 12
This is folly. Candidates say many things on the
campaign trail; they are often contradictory or inflammatory.3
No shortage of dark purpose can be found by sifting through
the daily promises of a drowning candidate, when in truth the
poor shlub’s only intention is to get elected. No Supreme
Court case—indeed no case anywhere that I am aware
of—sweeps so widely in probing politicians for
unconstitutional motives.4 And why stop with the campaign?
Personal histories, public and private, can become a
scavenger hunt for statements that a clever lawyer can
characterize as proof of a -phobia or an -ism, with the prefix
depending on the constitutional challenge of the day.
This path is strewn with danger. It will chill campaign
speech, despite the fact that our most basic free speech
principles have their “fullest and most urgent application
precisely to the conduct of campaigns for political office.”
McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1441
3 There is an anecdote, doubtless apocryphal, about Franklin
Roosevelt during a whistlestop tour. He had two speeches that took
opposite positions on a hot-button issue of the day. When the train
stopped at a town that favored the issue, he would give his “pro” speech.
And in towns that opposed the issue he’d give his “con” speech. One day
he approached a town that his advisors told him was divided evenly
between the pros and cons. FDR’s advisers worried about how he’d
handle the situation, but FDR was undaunted. He gave a speech and when
he was done the pros in the audience believed he was in their corner and
the cons were convinced he agreed with them. And that, friends, is the
nature of electoral politics.
4 Respect for a coordinate branch should also counsel against focusing
on campaign statements. Candidate Trump, unlike President Trump, had
not taken an oath to “preserve, protect and defend the Constitution,” U.S.
Const. art. II, § 1, cl. 8, and was not bound to “take Care that the Laws be
faithfully executed,” id. art. II, § 3.

-- 12 of 43 --

STATE OF WASHINGTON V. TRUMP 13
(2014) (citation and internal quotation marks omitted). And
it will mire us in a swamp of unworkable litigation. Eager
research assistants can discover much in the archives, and
those findings will be dumped on us with no sense of how to
weigh them. Does a Meet the Press interview cancel out an
appearance on Face the Nation? Does a year-old presidential
proclamation equal three recent statements from the cabinet?
What is the appropriate place of an overzealous senior thesis
or a poorly selected yearbook quote?
Weighing these imponderables is precisely the kind of
“judicial psychoanalysis” that the Supreme Court has told us
to avoid. McCreary County v. ACLU of Ky., 545 U.S. 844,
862 (2005). The hopelessness of this weighing exercise is
why the Supreme Court has never “deferred to comments
made by [government] officials to the media.” Hamdan v.
Rumsfeld, 548 U.S. 557, 623–24 n.52 (2006). And it’s why
the panel’s case citations for the supposedly “well
established” proposition that the President’s informal
statements are admissible, upon closer inspection, turn out to
refer to a much more limited universe: the text of city council
resolutions, early drafts of legislation, transcripts of
legislative discussions and contemporaneous statements by
legislative members. See Church of Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 534–35 (1993); Larson v.
Valente, 456 U.S. 228, 254 (1982); Vill. of Arlington Heights
v. Metro Housing Dev. Corp., 429 U.S. 252, 268 (1977).
Limiting the evidentiary universe to activities undertaken
while crafting an official policy makes for a manageable,
sensible inquiry. But the panel has approved open season on
anything a politician or his staff may have said, so long as a
lawyer can argue with a straight face that it signals an
unsavory motive.

-- 13 of 43 --

STATE OF WASHINGTON V. TRUMP 14
Even if a politician’s past statements were utterly clear
and consistent, using them to yield a specific constitutional
violation would suggest an absurd result—namely, that the
policies of an elected official can be forever held hostage by
the unguarded declarations of a candidate. If a court were to
find that campaign skeletons prevented an official from
pursuing otherwise constitutional policies, what could he do
to cure the defect? Could he stand up and recant it all (“just
kidding!”) and try again? Or would we also need a court to
police the sincerity of that mea culpa—piercing into the
public official’s “heart of hearts” to divine whether he really
changed his mind, just as the Supreme Court has warned us
not to? See McCreary, 545 U.S. at 862.
This is yet another reason my colleagues err by failing to
vacate this hasty opinion. The panel’s unnecessary
statements on this subject will shape litigation near and far.5
We’ll quest aimlessly for true intentions across a sea of
insults and hyperbole. It will be (as it were) a huge, total
disaster.
5 Contrary to the claims of Judges Reinhardt and Berzon, the
substance of the panel’s opinion continues to be highly relevant. Because
the panel has refused to vacate it, the opinion continues to be the law of
the circuit and is being followed by courts in the circuit and elsewhere.
My criticism bears directly on the mistake our court has made in failing
to vacate the opinion, and will hopefully warn other courts away from
similar errors. My colleagues’ effort to muzzle criticism of an egregiously
wrong panel opinion betrays their insecurity about the opinion’s legal
analysis.

-- 14 of 43 --

STATE OF WASHINGTON V. TRUMP 15
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
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.
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.

-- 15 of 43 --

STATE OF WASHINGTON V. TRUMP 16
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
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,

-- 16 of 43 --

STATE OF WASHINGTON V. TRUMP 17
§ 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.
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
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.

-- 17 of 43 --

STATE OF WASHINGTON V. TRUMP 18
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
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,
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).

-- 18 of 43 --

STATE OF WASHINGTON V. TRUMP 19
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).
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
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).

-- 19 of 43 --

STATE OF WASHINGTON V. TRUMP 20
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
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
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.

-- 20 of 43 --

STATE OF WASHINGTON V. TRUMP 21
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
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
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
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.

-- 21 of 43 --

STATE OF WASHINGTON V. TRUMP 22
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
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

-- 22 of 43 --

STATE OF WASHINGTON V. TRUMP 23
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
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.

-- 23 of 43 --

STATE OF WASHINGTON V. TRUMP 24
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.
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

-- 24 of 43 --

STATE OF WASHINGTON V. TRUMP 25
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
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

-- 25 of 43 --

STATE OF WASHINGTON V. TRUMP 26
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
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.

-- 26 of 43 --

STATE OF WASHINGTON V. TRUMP 27
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
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

-- 27 of 43 --

STATE OF WASHINGTON V. TRUMP 28
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.
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
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.

-- 28 of 43 --

STATE OF WASHINGTON V. TRUMP 29
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.
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.

-- 29 of 43 --

STATE OF WASHINGTON V. TRUMP 30
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
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

-- 30 of 43 --

STATE OF WASHINGTON V. TRUMP 31
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.

-- 31 of 43 --

STATE OF WASHINGTON V. TRUMP 32
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.

-- 32 of 43 --

STATE OF WASHINGTON V. TRUMP 33
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

-- 33 of 43 --

STATE OF WASHINGTON V. TRUMP 34
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.

-- 34 of 43 --

STATE OF WASHINGTON V. TRUMP 35
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

-- 35 of 43 --

STATE OF WASHINGTON V. TRUMP 36
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.

-- 36 of 43 --

STATE OF WASHINGTON V. TRUMP 37
BEA, Circuit Judge, with whom KOZINSKI, CALLAHAN,
and IKUTA, Circuit Judges, join, dissenting from the denial
of rehearing en banc:
I join Judge Bybee’s excellent dissent from the denial of
rehearing en banc. I write separately to emphasize a serious
error in the panel’s conclusion that the due process claims
advanced by Washington and Minnesota (collectively, “the
States”) were likely to succeed on the merits. States may not
sue the federal government to assert due process rights for
themselves, nor for their residents—much less non-resident
aliens—under the Fifth Amendment, because the States are
not proper party plaintiffs.1 We should have taken this case en
banc to correct this error in the panel’s due process holding
and the several errors identified by Judge Bybee in his
dissent.
The States are not proper party plaintiffs to make claims
under the Due Process Clause, because they are simply not
“persons” protected by the Fifth Amendment.2 See South
Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966) (“The
word ‘person’ in the context of the Due Process Clause of the
1 The panel denied the government’s motion for a stay solely on due
process grounds. Washington v. Trump, 847 F.3d 1151, 1164 (9th Cir.
2017). It specifically avoided deciding the First Amendment claim based
on religious discrimination.
2 I agree with the panel that the States have alleged proprietary harms
to their public universities sufficient to establish Article III standing. The
universities have spent money for procurement of visas for scholars,
faculty, and students, which expenditures will be wasted if the visa holders
are prevented from attendance at the state schools. What the States have
not done, however, is establish that they have rights under the Due Process
Clause of the Fifth Amendment to vindicate those proprietary harms.

-- 37 of 43 --

STATE OF WASHINGTON V. TRUMP 38
Fifth Amendment cannot, by any reasonable mode of
interpretation, be expanded to encompass the States of the
Union, and to our knowledge this has never been done by any
court.”);3 United States v. Thoms, 684 F.3d 893, 899 n.4 (9th
Cir. 2012) (quoting Katzenbach, 383 U.S. at 323); Premo v.
Martin, 119 F.3d 764, 771 (9th Cir. 1997) (“Because the State
is not a ‘person’ for the purposes of the Fifth Amendment, the
State’s reliance on the Due Process Clause was misplaced.”
(citing Katzenbach, 383 U.S. at 323–24)).
Perhaps to avoid this pitfall, the panel goes one step
further. It holds that, “[u]nder the ‘third party standing’
doctrine, [the] injuries to the state universities give the States
standing to assert the rights of the students, scholars, and
faculty affected by the Executive Order.” Washington,
847 F.3d at 1160. In taking this step, the panel ignores direct,
on-point Supreme Court precedent to the contrary.
The States may not sue the federal government as parens
patriae to protect their citizens from constitutional violations
alleged to have been committed by the federal government.
See Katzenbach, 383 U.S. at 324 (“Nor does a State have
standing as the parent of its citizens to invoke these
3 In Katzenbach, South Carolina sought “a declaration that selected
provisions of the Voting Rights Act of 1965 violate the Federal
Constitution,” and “an injunction against enforcement of [those]
provisions by the Attorney General.” Katzenbach, 383 U.S. at 307. South
Carolina filed its case directly in the Supreme Court, which had original
jurisdiction to hear the case. Id. The Court denied South Carolina’s request
to enjoin the enforcement of the Voting Rights Act. In its response to
South Carolina’s claim that the Voting Rights Act denied South Carolina
due process, the Court held that states may not bring due process claims
under the Fifth Amendment because states are not persons protected by
the Fifth Amendment. Id. at 323–24.

-- 38 of 43 --

STATE OF WASHINGTON V. TRUMP 39
constitutional provisions against the Federal Government, the
ultimate parens patriae of every American citizen.”);
Massachusetts v. Mellon, 262 U.S. 447, 485–86 (1923)
(“While the state, under some circumstances, may sue in that
capacity for the protection of its citizens, it is no part of its
duty or power to enforce their rights in respect of their
relations with the federal government. In that field it is the
United States, and not the state, which represents them as
parens patriae, when such representation becomes
appropriate; and to the former, and not to the latter, they must
look for such protective measures as flow from that status.”
(citing Missouri v. Illinois, 180 U.S. 208, 241 (1901))); see
also Erwin Chemerinsky, Federal Jurisdiction 123 (7th ed.
2016) (“One important limit on parens patriae standing of
state and local governments is that they may not sue the
federal government in this capacity, though they may sue the
federal government to protect their own sovereign or
proprietary interests.”).
The panel avoids this precedent, and holds that the States
may sue the federal government on behalf of their residents’
(and potential future residents’)4 constitutional interests under
4 The panel holds that the States may assert “potential claims
regarding possible due process rights of other persons,” including “[visa]
applicants who have a relationship with a U.S. resident or an institution
that might have rights of its own to assert.” Washington, 847 F.3d at 1166.
The Supreme Court has already explained that the States have no rights of
their own to assert under the Fifth Amendment, and have no basis for
asserting the Fifth Amendment due process rights of their residents. In
light of that precedent, I see no reason why the States would be permitted
to assert due process claims on behalf of foreign individuals who have not
yet received a visa, and who do not yet reside in the States that wish to
assert claims on the individuals’ behalves. The panel also does not explain
what procedures as to notice (reason for denial) or due process hearing
(proof of reasons) the federal government would need to provide non-

-- 39 of 43 --

STATE OF WASHINGTON V. TRUMP 40
the Fifth Amendment because the States have third-party
standing to do so.5 None of the precedent cited by the panel
resident visa applicants to satisfy due process upon the denial or
suspension of entry pursuant to 8 U.S.C. § 1182(f). Suppose, for example,
an Iranian national applies for a non-immigrant tourist visa on April 1, and
hostilities break out between the United States and Iran on April 10, one
day before the Iranian national expected to receive a visa. Is the Iranian
national entitled to notice that his visa will not be issued because of the
outbreak of hostilities and to a hearing to justify that the government’s
denial does not violate the Iranian national’s due process rights? Before
whomwould that hearing be held, where would it take place, and what
would be the required proof? Could the Iranian national file suit in a
federal district court to assert his “possible” due process rights? The panel
invites litigation by visa applicants and other non-resident foreign
nationals to assert “potential claims regarding possible due process
rights.” Id. But, as Judge Bybee shows with precision, no alien has a right
to enter the United States; it is a privilege which can be withheld. See
Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held
that an alien seeking initial admission to the United States requests a
privilege and has no constitutional rights regarding his application, for the
power to admit or exclude aliens is a sovereign prerogative.”).
5 The States did not raise third-party standing as a basis to assert the
due process rights of their residents. Instead, the States argued that, as
parens patriae, they may bring due process claims on behalf of their
residents (and potential future residents), citing Mellon, 262 U.S. at
481–82, 485 (1923), Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S.
592, 609 (1982), and Massachusetts v. EPA, 549 U.S. 497, 516–21, 520
n.17 (2007). Not so. Although Mellon cites Missouri v. Holland, 252 U.S.
416 (1920), for the proposition that a state may sue the federal government
to protect its own quasi-sovereign interests, such as the right of a state to
regulate the taking of wild game within its borders, Mellon, 262 U.S. at
482, Mellon also made clear that “it is no part of [a state’s] duty or power
to enforce [its citizens’] rights in respect of their relations with the federal
government.” Id. at 485–86. In Snapp, Puerto Rico sued private
individuals and companies engaged in the apple industry in Virginia,
alleging that those individuals and companies violated federal statutes
when they allegedly discriminated against qualified Puerto Rican
farmworkers. The Fourth Circuit held that Puerto Rico, as parens patriae,

-- 40 of 43 --

STATE OF WASHINGTON V. TRUMP 41
supports its assertion—which, by the way, was never
advanced by the States in their complaint, their response to
the federal government’s emergency motion, or during oral
argument—that a state can evade the strictures of Katzenbach
and Mellon through third-party standing doctrine. A closer
look at third-party standing doctrine reveals just the opposite.
See Kowalski v. Tesmer, 543 U.S. 125, 129–30 (2004)
(“[T]here may be circumstances where it is necessary to grant
a third party standing to assert the rights of another. But we
have limited this exception by requiring a party seeking third-
party standing make two additional showings. First, we have
asked whether the party asserting the right has a ‘close’
relationship with the person who possesses the right. Second,
could maintain its suit against the private defendants. The Supreme Court
affirmed, and held that Puerto Rico could sue “to secure the federally
created interests of its residents against private defendants,” but also noted
that states lack “standing as parens patriae to bring an action against the
Federal Government.” Snapp, 458 U.S. 592, 610 n.16 (emphasis added).
Finally, in Massachusetts v. EPA, the Supreme Court held that
Massachusetts alleged facts sufficient to establish standing—not to assert
constitutional rights on behalf of its residents, but to assert a statutory right
on behalf of the state’s own quasi-sovereign interests—to sue the
Environmental Protection Agency (EPA). Massachusetts, 549 U.S. at
517–21. The Court held that the state was entitled to “special solicitude”
in the standing analysis because Congress accorded the states a procedural
right to challenge agency action unlawfully withheld, and because the
state owned much of the territory alleged to be affected by the EPA’s
withholding of agency action. Id. at 520. Here, neither the States nor the
panel cite any congressional authorization for the States to bring their
claims. None of the cases cited by the States or the panel supports a theory
that a state, as parens patriae, may sue the federal government to assert
the due process rights of its residents. The panel’s uninvited leap to third-
party standing completely avoids the precedents actually cited by the
States, which more directly address the question whether states can sue the
federal government to assert constitutional claims on behalf of their
residents. The answer to that question is “No.”

-- 41 of 43 --

STATE OF WASHINGTON V. TRUMP 42
we have considered whether there is a ‘hindrance’ to the
possessor’s ability to protect his own interests.” (quoting
Powers v. Ohio, 499 U.S. 400, 411 (1991)). Even if we
assume a close relationship between the States’ universities
and their students, faculty, and scholars, the panel—and more
importantly, the States—have not identified any hindrance to
first parties’ “ability to protect [their] own interests” here. Id.;
see also Louhghalam v. Trump, ___ F. Supp. 3d ___, 2017
WL 479779 (D. Mass. Feb. 3, 2017) (reviewing constitutional
claims arising from Executive Order 13769 brought by
Iranian nationals who are employed as Associate Professors
at the University of Massachusetts–Dartmouth). The panel’s
conclusion that the States may assert the due process rights of
their residents (or potential future residents) under third-party
standing doctrine renders Katzenbach and Mellon
meaningless.
To the lay person, our discussion of third-party standing
doctrine may seem pedantic and without recognition of the
harm that could have resulted from the grant of the federal
government’s motion to stay the temporary restraining order
pending appeal. The important point is this: The States may
not sue the federal government, either on their own behalf or
on behalf of their citizens, to protect their residents’ due
process rights under the Fifth Amendment. Much less do the
States have third-party standing as to non-resident aliens
seeking entry into the country. Therefore, the panel erred
when it concluded that the federal government did not
establish a likelihood of success on the merits of the States’
due process claims—the only claims fully addressed by the
panel.
As the district court stated, but unfortunately failed
adequately to apply in his temporary restraining order, “The

-- 42 of 43 --

STATE OF WASHINGTON V. TRUMP 43
work of the court is not to create policy or judge the wisdom
of any particular policy promoted by the other two branches.
That is the work of the legislative and executive branches and
of the citizens of this country who ultimately exercise
democratic control over those branches. The work of the
Judiciary, and this court, is limited to ensuring that the
actions taken by the other two branches comport with our
country’s laws, and more importantly, our Constitution.”
Washington v. Trump, No. C17-0141-JLR, 2017 WL 462040,
at *3 (W.D. Wash. Feb. 3, 2017). At a minimum, the federal
government established a likelihood of success on the merits
that Executive Order 13769 comports with our country’s laws
and our Constitution. The government’s motion for a stay of
the temporary restraining order should have been granted.
Our court should have avoided the inclination to rule based
on the political headwinds of a particular moment in history
and taken this case en banc to correct the panel’s significant
errors.

-- 43 of 43 --