John
Doe # 1, et al. V. Donald Trump as President, et al.
United States District Court for
the District of Oregon
Case 3:19-cv-01743-SB Document 33
Filed 11/02/19
TEMPORARY RESTRAINING ORDER
by Michael H. Simon, District Judge
On October 4, 2019, the President
of the United States issued Proclamation
No. 9945, titled “Presidential Proclamation on the Suspension of Entry of
Immigrants Who Will Financially Burden the United States Healthcare System”
(the “Proclamation”). President Donald J. Trump directed that the Proclamation
become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On
October 29, 2019, the U.S. Department of State issued a “Notice of Information
Collection” for “Emergency Review” (the “Emergency Notice”), which was
published in the Federal Register on October 30, 2019, and provided a comment
period of less than 48 hours.
The Emergency Notice states that
“to implement [the Proclamation] when it goes into effect on November 3, 2019,”
consular officers “will verbally ask immigrant visa applicants covered by [the
Proclamation] whether they will be covered by health insurance in the United
States within 30 days of entry to the United States and, if so, for details
relating to such insurance.” If the applicant says yes, “consular officers will
ask for applicants to identify the specific health insurance plan, the date
coverage will begin, and such other information related to the insurance plan
as the consular officer deems necessary.” The Emergency Notice further adds
that visa applicants will not be suspended “if they do not have coverage but
possess financial resources to pay for reasonably foreseeable medical
expenses.” It defines “reasonably foreseeable medical expenses” as “those expenses
related to existing medical conditions, relating to health issues existing at
the time of visa adjudication.”
****
On October 30, 2019, seven U.S.
citizens and a nonprofit organization (collectively, “Plaintiffs”) filed a
nationwide class action complaint against the President, the U.S. Department of
Homeland Security, the U.S. Department of Health and Human Services, the U.S.
Department of State, and related Cabinet Secretaries (collectively,
“Defendants”), challenging both the Proclamation and the Emergency Notice.
Plaintiffs contend that the Proclamation is contrary to law. Plaintiffs also
argue that the Emergency Notice is “arbitrary and capricious” under the
Administrative Procedure Act (“APA”) and also fails to follow the “notice and
comment” procedures required by the APA. On November 1, 2019, Plaintiffs filed
a Motion for Temporary Restraining Order (“TRO”), seeking to preserve the
status quo and prevent Defendants from implementing or enforcing the
Proclamation, at least until after the Court can hear and decide a motion for
preliminary injunction.
On Saturday, November 2, 2019, at
2:00 p.m. Pacific daylight time, the Court held a hearing pursuant to Rule
65(b) of the Federal Rules of Civil Procedure to consider Plaintiffs’ TRO
motion. All parties appeared through counsel, although Defendants have not yet
had an opportunity to submit their arguments in writing. At this early stage of
the proceedings, the Court is satisfied that Plaintiffs have shown either a substantial likelihood of success on the
merits or at least serious questions going to the merits regarding
their arguments that the Proclamation and its plan of implementation and
enforcement conflict with the “public charge” provisions in Congress’
Immigration and Nationality Act (“INA”) and related federal health care
statutes.
Plaintiffs have also shown, at
least at this stage of the litigation, serious
questions going to the merits regarding whether the Emergency Notice was
arbitrary and capricious and, thus, in violation of the APA. At this time, the
Court declines to reach whether the Emergency Notice also violated the
procedural “notice and comment” requirements of the APA. Further, Plaintiffs
have shown, at least thus far, that they are
likely to suffer irreparable harm in the absence of temporary relief, that the
balance of hardships tips sharply toward Plaintiffs, and temporary relief is in
the public interest.
Accordingly, Plaintiffs’ motion
for TRO is granted, for a period not to exceed 28 days, to allow the parties
sufficient time to brief and argue whether the Court should issue a preliminary
injunction suspending the implementation and enforcement of the Proclamation
until the issues presented in this lawsuit have been resolved on the merits
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