People For the American Way

Trump Judge Would Allow Enforcement Of Anti-Immigrant Proclamation Without Government Proving Irreparable Harm If Not Enforced: Confirmed Judges, Confirmed Fears

News and Analysis
Trump Judge Would Allow Enforcement Of Anti-Immigrant Proclamation Without Government Proving Irreparable Harm If Not Enforced: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In May 2020, Trump Ninth Circuit judge Daniel Bress dissented in Doe v. Trump, in which the majority rejected the government’s motion to stay the district courts nationwide injunction against Trump’s Proclamation 9945, which required immigrants entering the U.S. with visas to show they will have health insurance while in the U.S. or be able to pay for their own health care costs.

On October 4, 2019, the President issued Proclamation 9945, which required individuals seeking to enter the United States on an immigrant visa to demonstrate that they will be covered by health insurance within 30 days of their entry or that they have the resources to cover healthcare costs.  The Proclamation was to become effective on November 3, 2019.

On October 30, 2019, the Latino Action Network, an organization that provides immigrant services, and seven U.S. citizens whose family members they have sponsored for immigrant visas would be affected by the Proclamation filed suit in district court to stop the enforcement of the Proclamation.

On November 2, 2019, the district court ruled that the Proclamation would result in irreparable harm by prolonging family separation and issued a temporary restraining order. A few weeks later, before the restraining order was set to expire, the district court issued a nationwide preliminary injunction precluding the implementation of the Proclamation.

The government sought relief from the Ninth Circuit by filing a motion for an emergency stay of the district court’s injunction.

In a 2-1 decision, the majority held that the district court did not abuse its discretion in entering a nationwide injunction and that the government failed to meet its burden to show irreparable harm absent a stay of the preliminary injunctive relief. They went on to explain that the government only pointed to the statement in the Proclamation that recent immigrants are three times more likely than citizens to lack health insurance and presented no data to support that claim. The government’s evidence of harm was purely monetary, and ‘monetary injury is not normally considered irreparable.’  The plaintiffs, on the other hand, presented evidence that uninsured immigrants – documented and undocumented – represent only 0.3% of American adults and only 2.9 percent of uninsured adults.  In addition, uninsured immigrants use less than 0.06 percent  of total American medical resources and only 0.08 percent of emergency service expenditures. The record sufficiently supported the district court’s conclusion.

Judge Daniel Bress harshly dissented, writing that the decision is yet another “example of this court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy.”  The majority pointed out, however, that the government had not made the necessary “strong showing” that it would likely prevail on the merits of the case, and that the scope of the injunction could be revisited below.


Confirmed Judges Confirmed Fears, Daniel Bress, Immigration, Ninth Circuit Court of Appeals