If you read the 9th Circuit’s opinion in Washington v. Trump, you may think that Justice Kennedy’s concurring opinion in Kerry v. Din (2015) endorsed the heretofore unknown principle that aliens with zero connection to the United States–other than American relatives, or even an interest in visiting a Washington University–are afforded due process rights. Consider this analysis:

Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas, 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). Accordingly, the Government has not demonstrated that the States lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.

Discussing the panel’s decision, Mike Dorf, for one, explains Kennedy’s concurring opinion holds that “a credible allegation of bad faith would enable a court to look behind a government’s facial assertion of a national security interest in excluding an alien outside the United States.” Not quite.

Let’s take a look at a closer look at Kerry v. Din. Fauzia Din was a U.S. citizen. Her husband, Kanishka Berashka, was an Afghan national, and a former civil servant in the Taliban. Din applied for an immigrant visa for her husband. Berashka was interviewed at the U.S. embassy in Islamabad. The consular officer told him that he was inadmissible under 8 U.S.C. s. 1182(a)(3)(B), which deems inadmissible those who had engaged in “terrorist activities.” Berashka was not given any reason for the denial beyond the statutory citation. Berashka had no cause of action. In light of the 1972 precedent of Kleindienst v. Mandel, the husband has “no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.” Instead, Din filed for mandamus on his behalf in the Northern District of California, and sought a “declaratory judgment that 8 U.S.C. § 1182(b)(2)-(3), which exempts the Government from providing notice to an alien found inadmissible under the terrorism bar, is unconstitutional as applied.”

Before the Supreme Court, Din argued that the denial of the visa “without adequate explanation” in fact deprived her of due process of law, and “violated her constitutional rights.” The authorship of this case is complicated. Justice Scalia announced the judgment of the Court for the Chief and Justice Thomas. Justice Kennedy, joined by Justice Alito, concurred in judgment. In other words, there was not a five-member majority. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.

Justice Scalia’s opinion rejected her claim. Because Din cannot assert a “life” or “property” interest, she could only assert a substantive due process right. To the surprise of no one, Justice Scalia concluded that “no such constitutional right” exists. “Only by diluting the meaning of a fundamental liberty interest and jettisoning our established jurisprudence,” he wrote, “could we conclude that the denial of Berashk’s visa application implicates any of Din’s fundamental liberty interests.” Critically, Scalia concluded, “The legal benefits afforded to marriages and the preferential treatment accorded to visa applicants with citizen relatives are insufficient to confer on Din a right that can be deprived only pursuant to procedural due process.” As a result, the due process claim fails, because “no process is due if one is not deprived of ‘life, liberty, or property.'”

Justice Breyer’s dissent, in contrast, contended that the denial of the visas amounted to a “deprivation of [Din’s] freedom to live together with her spouse in America.” The dissent stops short of asserting a fundamental substantive due process right, but claims that the right is significant enough to warrant procedural due process. To this, Justice Scalia responds:

[The denial of the visa] might, indeed, deprive Din of something “important,” post, at 2142, but if that is the criterion for Justice BREYER’s new pairing of substantive and procedural due process, we are in for quite a ride.

(How Justice Breyer can read so woodenly an enumerated right that actually speaks of “the right of the people to keep and bear arms,” yet imbue into the word “liberty” heretofore unknown rights, will always confound me.).

Justice Kennedy’s opinion, as usual, was far more nuanced. It begins:

The plurality is correct that the case must be vacated and remanded. But rather than deciding, as the plurality does, whether Din has a protected liberty interest, my view is that, even assuming she does, the notice she received regarding her husband’s visa denial satisfied due process. Today’s disposition should not be interpreted as deciding whether a citizen has a protected liberty interest in the visa application of her alien spouse. The Court need not decide that issue, for this Court’s precedents instruct that, even assuming she has such an interest, the Government satisfied due process when it notified Din’s husband that his visa was denied under the immigration statute’s terrorism bar, § 1182(a)(3)(B). See ante, at 2131 – 2132.

The divide about substantive due process likely caused the fragmented opinion. Recall that this decision was on the doorstep of the marriage equality cases. At the time, I wrote:

I think Justice Kennedy was originally assigned the majority opinion in Kerry v. Din, but lost Scalia, Roberts, and Thomas. Only Justice Alito concurred with AMK. Recall that Scalia, Roberts, and Thomas issued a much broader opinion that implicated the SSM cases, while AMK resolved it on much narrower grounds. It’s possible Nino’s circulated concurring opinion broke off the votes of Roberts and Thomas.

Even then, however, Justice Alito is no fan of substantive due process. It is a stretch to read the concurring opinion as endorsing anything as broad as that of Justice Breyer’s dissent.

The important element is–contrary to the 9th Circuit’s characterization–Justice Kennedy found that the minimal notification given to Din ( her husband was inadmissible, without any substantiation) satisfied due process! Why? Read Justice Kennedy’s recitation of Kleindienst v. Mandel in its entirety. In light of AMK’s usual meandering prose about precedent, this recitation is a model of clarity.

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, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). There, college professors—all of them citizens—had invited Dr. Ernest Mandel, a self-described “ ‘revolutionary Marxist,’ ” to speak at a conference at Stanford University. Id., at 756, 92 S.Ct. 2576. Yet when Mandel applied for a temporary nonimmigrant visa to enter the country, he was denied. At the time, the immigration laws deemed aliens “who advocate[d] the economic, international, and governmental doctrines of World communism” ineligible for visas. § 1182(a)(28)(D) (1964 ed.). Aliens ineligible under this provision did have one opportunity for recourse: The Attorney General was given discretion to waive the prohibition and grant individual exceptions, allowing the alien to obtain a temporary visa. § 1182(d)(3). For Mandel, however, the Attorney General, acting through the Immigration and Naturalization Service (INS), declined to grant a waiver. In a letter regarding this decision, the INS explained Mandel had exceeded the scope and terms of temporary visas on past trips to the United States, which the agency deemed a “ ‘flagrant abuse of the opportunities afforded him to express his views in this country.’ ” 408 U.S., at 759, 92 S.Ct. 2576.

The professors who had invited Mandel to speak challenged the INS’ decision, asserting a First Amendment right to “ ‘hear his views and engage him in a free and open academic exchange.’ ” Id., at 760, 92 S.Ct. 2576. They claimed the Attorney General infringed this right when he refused to grant Mandel relief. See ibid.

The Court declined to balance the First Amendment interest of the professors against “Congress’ ‘plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.’ ” Id., at 766, 768, 92 S.Ct. 2576 (citation omitted). To do so would require “courts in each case … to weigh the strength of the audience’s interest against that of the Government in refusing a [visa] to the particular applicant,” a nuanced and difficult *2140 decision Congress had “properly … placed in the hands of the Executive.” Id., at 769, 92 S.Ct. 2576.

Instead, the Court limited its inquiry to the question whether the Government had provided a “facially legitimate and bona fide” reason for its action. Id., at 770, 92 S.Ct. 2576. Finding the Government had proffered such a reason—Mandel’s abuse of past visas—the Court ended its inquiry and found the Attorney General’s action to be lawful. See ibid. The Court emphasized it did not address “[w]hat First Amendment or other grounds may be available for attacking an exercise of discretion for which no justification whatsoever is advanced.” Ibid.

The 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. Mandel held that an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made “on the basis of a facially legitimate and bona fide reason.” Id., at 770, 92 S.Ct. 2576. Once this standard is met, “courts will 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. Ibid. This reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.

Simply put, Kennedy concludes, the only process that was due to Din was a notice that the visa was being denied on a specific-statutory ground.

Here, the consular officer’s determination that Din’s husband was ineligible for a visa was controlled by specific statutory factors. The provisions of § 1182(a)(3)(B) establish specific criteria for determining terrorism-related inadmissibility. The consular officer’s citation of that provision suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements. Given Congress’ plenary power to “suppl[y] the conditions of the privilege of entry into the United States,” United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 543, 70 S.Ct. 309, 94 L.Ed. 317 (1950), it follows that the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.

As usual, Justice Kennedy’s opinion does leave some wiggle room open:

But unlike the waiver *2141 provision at issue in Mandel, which granted the Attorney General nearly unbridled discretion, § 1182(a)(3)(B) specifies discrete factual predicates the consular officer must find to exist before denying a visa. Din, moreover, admits in her Complaint that Berashk worked for the Taliban government, App. 27–28, which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity. Absent an affirmative showing of bad faith on the part of the consular officer who denied Berashk a visa—which Din has not plausibly alleged with sufficient particularity—Mandel instructs us not to “look behind” the Government’s exclusion of Berashk for additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed. See 408 U.S., at 770, 92 S.Ct. 2576.

Unless the consular officer engaged in “bad faith,” that is, he did not faithfully apply the statutory factors, the court will not scrutinize the denial.

How does this precedent apply to Washington v. Trump.

1. Through the Executive Order, the President declared that aliens from seven nations were “detrimental” to the interests of the United States, pursuant to 8 U.S.C. 1182(f).
2. Citing the executive order, and other statutory authority, the State Department determined that it would not grant visas to nationals of these seven nations.
3. Thus, a national from one of those seven nations who applies for a visa will not have it granted. (It will likely linger, rather than be formally denied). When such a pending visa application is denied, what reason is given? The President’s designation under 1182(f) that the “entry” of nationals from seven nations are “detrimental” to American interests. To paraphrase from Kennedy’s opinion, “The consular officer’s citation of that provision suffices to show that the denial rested on a determination that [the alien] did not satisfy the statute’s requirements.”
4. This rationale, under both Mandel and Kennedy’s concurring opinion in Din, is “facially legitimate and bona fide.”
5. Further, there is no evidence the consular officer denied a particular alien’s visa “in bad faith,” so there is no occasion to “look behind” the exclusion. That is, the consular officer did not single out the individual alien for improper reasons. Critically, Din does not concern looking behind the Executive’s policy itself, but rather the individual consular officer’s decisions. This point is entirely lost on the 9th Circuit panel, which extrapolates the concurring opinion to a facial attack on the executive’s policy vel non.

Further, weakening the panel’s analysis, Justice Kennedy writes that the due process analysis is informed by the statutory scheme.

Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Executive to decide when more detailed disclosure is appropriate. This considered judgment gives additional support to the independent conclusion that the notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses. See Fiallo v. Bell, 430 U.S. 787, 795–796, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977); see also INS v. Aguirre–Aguirre, 526 U.S. 415, 425, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). And even if Din is correct that sensitive facts could be reviewed by courts in camera, the dangers and difficulties of handling such delicate security material further counsel against requiring disclosure in a case such as this. Under Mandel, respect for the political branches’ broad power over the creation and administration of the immigration system extends to determinations of how much information the Government is obliged to disclose about a consular officer’s denial of a visa to an alien abroad.

Once again, the failure of the panel to even mention the statute is inexcusable. If Congress affords the President a broad power to deny entry to classes of aliens–a power he arguably has under Article II–courts should assume that such denials are not subject to additional, unspecificed, due process rights. In other words, we should presume here that Congress acted constitutionally by giving the President an authority that was not subject to any judicial review. Further, under the first tier of Justice Jackson’s concurring opinion, all of these questions are subject to the laxest scrutiny. The sort of strict scrutiny applied by the panel is indefensible.

How does the panel get away from Mandel? By finding a distinction without a difference.

In fact, the Mandel standard applies to lawsuits challenging an executive branch official’s decision to issue or deny an individual visa based on the application of a congressionally enumerated standard to the particular facts presented by that visa application. 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.

That is, for sure, a distinction. Nothing in Mandel suggests that distinction is relevant. Indeed, Washington took another stab at distinguishing the case:

[Mandel] dealt with the President’s power to exclude “an unadmitted and nonresident alien,” i.e., someone who had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131. This case, by contrast, involves longtime residents who are here and have constitutional rights.

Making this arbitrary distinction even worse, the panel charged the Justice Department with “omit[ting] portions of the quoted language to imply that this standard governs judicial review of all executive exercises of immigration authority.” Asserting the Acting Solicitor General misquoted Supreme Court precedent is a big, big deal. What are these omitted portions?  The panel does not tell us. I’ll do my best to divine what the panel meant. Here is Acting SG’s only quotation from Mandel:

Washington nevertheless argued that the district court should disregard the President’s stated rationale for issuing the Executive Order because Washington believed it was prompted by religious animus toward Islam. That argument is wrong, and it cannot be reconciled with Kleindienst v. Mandel, 408 US. 753, 770 (1972), which held that, “when the Executive exercises” immigration authority “on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion[.]” Cf. Kerry v. Din, 135 S. Ct. 2128, 2140 (2015) (Kennedy, J., concurring) (noting that Mandel’s “reasoning has particular force in the area of national security”).

Here is the full quotation from Mandel:

In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been *770 firmly established. In the case of an alien excludable under s 212(a)(28), Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively 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. What First Amendment or other grounds may be available for attacking exercise of discretion for which no justification whatsoever is advanced is a question we neither address or decide in this case.

The phrase omitted is “this power negatively,” referring to the Attorney General’s decision not to give the Marxist professor an exemption from the normal policy of exclusion. Again, this distinction is paper thin. The panel’s claim that President Trump’s “sweeping immigration policy” is different from “application of a specifically enumerated congressional policy” would have benefited from an actual discussion of the statutory argument underlying 1182(f). To put it succinctly, the Executive Order was the exercise of statutory authority, just as in Mandel. True they are different statutes, but they both represent wind-ranging delegations of authority from Congress to the executive. The failure to even mention the statute, makes this distinction even more unpersuasive.

Let’s return to how the 9th Circuit cites Din:

applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting);

The word “might” is carrying a lot of weight there. Kennedy’s opinion established that the process provided to Din–the answer no without any explanation–was all the process that was due! There was no hearing. No opportunity to be heard. NO judicial review. Nothing. Yet, the panel (in reliance on Din) stated:

The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.

Nothing in Kennedy’s opinion in Din, or Mandel three decades earlier, supports the panel’s decision.

It is noteworthy that Kennedy’s opinion recounts the “plenary” power doctrine, without any of his usual empathetic qualifications. It’s a shame that a dissenting opinion was not able to hoist the panel on its own petard. Hopefully a dissent from denial from rehearing en banc can accomplish just that.

For certain, Justice Kennedy can change his mind on the next case, but we should not pretend that his Din concurring opinion provides a clear, inescapable route to invalidate the executive order. This sentence from the concurring opinion is worth repeating in closing: “This reasoning has particular force in the area of national security, for which Congress has provided specific statutory directions pertaining to visa applications by noncitizens who seek entry to this country.”

(Ed Kneedler, who argued Din, would have been far better prepared to answer the panel’s questions on this case than Auggie Flentje, who seemed unprepared to address these questions).

Update: Here is my thread which summarizes this post.