In a ruling issued minutes ago (in John Doe #1 v. Trump), a divided panel of the Ninth Circuit has denied the Trump administration’s motion for a stay pending appeal of a district-court order that bars the Trump administration from enforcing Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System. The panel divided on ideological lines: Chief Judge Sidney Thomas, joined by Judge Marsha Berzon, wrote the majority opinion, and Judge Daniel Bress wrote the dissent.

Here are the opening paragraphs of Judge Bress’s 50+-page dissent (some citations omitted or simplified):

Today’s decision is yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy. This time, the President in Proclamation No. 9945 imposed certain restrictions on the entry of immigrants who, in the President’s judgment, will unduly burden the American healthcare system. In what unfortunately has become standard operating procedure, the district court enjoined the Proclamation on a nationwide basis before it could take effect. While declining to endorse the district court’s central rationale, my fine colleagues in the majority find a way to justify the district court’s decision, while refusing to stay or limit its blanket injunction.

The majority gravely errs in concluding that the Proclamation is likely unconstitutional. There is no legal basis to impose novel and unjustified restrictions on what the Supreme Court has described as “the President[’s] sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” Trump v. Hawaii (2018). The President issued Proclamation No. 9945 based on his constitutional powers and his statutory authority in 8 U.S.C. § 1182(f). The Supreme Court has held that this provision “[b]y its terms” “exudes deference to the President in every clause.” Yet the majority opinion gives deference to everyone but the President—the district court, whose analysis was deeply flawed; States who joined an amicus brief and who are not even parties to this case; and plaintiffs’ expert, Dr. Leighton Ku, who candidly admits he performed “not an ideal analysis.”

It is a bad day for the separation of powers when the Executive—operating at the apex of his constitutional mandate—loses out to players who lack the authority that the Constitution and Congress entrusted to him. And it is an equally bad day for the rule of law when the majority opinion endorses arguments that the Supreme Court expressly rejected two years ago in Trump v. Hawaii. As with many immigration policies, reasonable minds will differ as to whether Proclamation No. 9945 is good or bad policy. But the great policy debates of our time should be resolved in the halls of Congress, the public square, and at the ballot box, not by a district court in Oregon or a three-judge panel in San Francisco. What I know is that Proclamation No. 9945 is valid as a matter of law. And that is what matters here.

The majority’s unjustified intrusion on presidential prerogative is, however, only made more problematic by the scope of the injunction that the court allows. The district court, as noted, issued a nationwide injunction, and one that in fact operates worldwide. Injunctions such as this raise many issues, as the Supreme Court has signaled in repeatedly staying lower courts’ (and our court’s) universal injunctions. [Citing five recent rulings.]

Not heeding these signals, the majority allows another universal injunction to remain in place, but with new and unfortunate twists. When the district court enjoined Proclamation No. 9945, it did so without certifying any class. Just recently, however, and many months into this appeal of its injunction, the district court certified two classes, one of persons in the United States and one of “foreign nationals” around the world. The sequence of events here is cause for concern, and the majority’s reliance on the belated class certification decision confirms that the district court’s universal injunction was not justified when issued. But what the class certification ruling also shows is that the excesses of universal injunctions stem in large part from a failure to abide by the rigorous requirements for class certification—requirements that the district court unfortunately did not observe.

If there is any solace here, it is that the majority has only denied a stay of the injunction. I hope the merits panel that receives this case will see things differently. But that decision will be issued many months from now, if not longer. There is no reason for the Executive to have his chosen and plainly constitutional Proclamation put on ice in the interim—a delay that inflicts real damage on our constitutional system. For the reasons expressed here and in my prior dissent in this matter, I would have stayed the district court’s injunction. I therefore respectfully dissent.