Blog

In most cases, originalism is associated with the interpretation of the Constitution. To understand provisions ratified in 1789, 1791, or 1868, scholars turn to contemporary sources to ascertain their original meaning. However, this modality is in no sense limited to the Constitution. It also applies to statutes, in what I think of as statutory originalism.

Many of the critiques of constitutional originalism apply with much weaker force to statutory originalism. First, the so-called “dead hand” problem is not present. While binding constitutional provisions are extremely hard to change–thus allowing the “dead hand” to control our polity–statutes can be easily changed with a mere majority vote in Congress. Second, while constitutional provisions are always present and binding, statutes that are unimportant often fall into desuetude due to a lack of enforcement. In this sense, bad statutes fade away, while (potentially) bad constitutional provisions linger indefinitely.

Third, and most importantly, it is far easier to ascertain the original understanding of a statute–especially one of fairly recent vintage–then a provision drafted two-hundred years ago. The volume of information attending the clandestine convention of 1787, while significant, is dwarfed by the legislative records of fairly mundane provisions enacted today. (Although I’ve written that the relevance of modern legislators’ statements–which may be motivated by a contrived attempt to affect judicial review–ought to be diminished). Further, lexicography–the study of language–is far more sophisticated today than it was two centuries ago. When reading a statute of some vintage, where the present-day meaning of a word has shifted, jurists can, and should look, to dictionaries at the time the provision was drafted, to ascertain its original understanding. Indeed, it is neither necessary, nor desirable, to find a dictionary from the same year as the statute. As Justice Scalia and Bryan Garner observed, “Dictionaries tend to lag behind linguistic realities.” If you are seeking the meaning of a well-established term in an 1819 statute, they wrote, ” it is generally quite permissible to consult an 1828 dictionary.”

Statutory originalism is most useful when the meaning of a word undergoes a fairly rapid linguistic evolution. Imparting a present-day meaning into a phrase that was selected by Congress some decades ago converts the U.S. code into a living breathing, document (a sort of living constitutionalism for statutes). Any arguments that support living constitutionalism–Article V is hard, and our laws must move with the time–apply with minimal force to statutes, which can be tweaked on the fly.

Perhaps there is no greater illustration of this dynamic today than the word “sex.” Title IX of the Education Amendments of 1972 prohibits discrimination “on the basis of sex.” 20 U.S.C. §1681(a). The 4th Circuit in GG v. Gloucester County School Board relied extensively on dictionaries to ascertain the meaning of “sex” in 1972. Judge Niemeyer’s dissent canvassed five contemporary dictionaries to establish the proposition that “sex” refers to the “physiological distinctions between males and females, particularly with respect to their reproductive functions.”:

Title IX was enacted in 1972 and the regulations were promulgated in 1975 and readopted in 1980, and during that time period, virtually every dictionary definition of “sex” referred to the physiological distinctions between males and females, particularly with respect to their reproductive functions. See, e.g., The Random House College Dictionary 1206 (rev. ed.1980) (“either the male or female division of a species, esp. as differentiated with reference to the reproductive functions”); Webster’s New Collegiate Dictionary 1054 (1979) (“the sum of the structural, functional, and behavioral characteristics of living beings that subserve reproduction by two interacting parents and that distinguish males and females”); American Heritage Dictionary 1187 (1976) (“The property or quality by which organisms are classified according to their reproductive functions”); Webster’s Third New International Dictionary 2081 (1971) (“the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change …”); The American College Dictionary 1109 (1970) (“the sum of the anatomical and physiological differences with reference to which the male and the female are distinguished …”).

The majority opinion by Judge Floyd likewise focused on the American College Dictionary (1970) and Webster’s Third  to “inform our analysis of how the term “sex” was understood at that time.” The full definition from Webster’s Third, is, by far, the most capacious:

the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu[ally] genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness.

There is a reason why Webster’s Third was Justice Scalia’s bête noire. As I noted in Unraveled:

Scalia and Garner strongly criticized the follow-up edition, Webster’s Third, because of “its frequent inclusion of doubtful, slip-shod meanings without adequate usage notes.” Antonin Scalia and Bryan A. Garner, A Note on the Use of Dictionaries, 16 Green Bag 2d 419 (2013). See also MCI Telecomms. Corp. v. AT& T Co., 512 U.S. 218, 228 n. 3 (1994) (per Scalia, J.) (noting that “[u] pon its long-awaited appearance in 1961, Webster’s Third was widely criticized for its portrayal of common error as proper usage,” and citing as an instance “its approval (without qualification) of the use of ‘infer’ to mean ‘imply’”). Merriam-Webster’s editor-in-chief Frederick C. Mish was not troubled. “I regret having to say that Judge Scalia is in error on this matter,” Mish said, “but at least he has the satisfaction of knowing that his error is not reversible by a higher court.” William Safire, On Language: Scalia v. Merriam-Webster, N.Y. Times (Nov. 20, 1994), nyti.ms/292OQ9W.

Blackman, Josh. Unraveled: Obamacare, Religious Liberty, and Executive Power (p. 500). Cambridge University Press. Kindle Edition.

We should never forget that Justice Stevens concluded in Gonzales v. Raich that the cultivation of locally grown marijuana was an “economic activity” by citing Webster’s Third.

Unlike those at issue in Lopez and Morrison, the activities regulated by the CSA are quintessentially economic. “Economics” refers to “the production, distribution, and consumption of commodities.” Webster’s Third New International Dictionary 720 (1966). The CSA is a statute that regulates the production, distribution, and consumption of commodities for which there is an established, and lucrative, interstate market. Prohibiting the intrastate possession or manufacture of an article of commerce is a rational (and commonly utilized) means of regulating commerce in that product.

In any event, relying on Webster’s Third, the GG majority finds that these dictionary definitions are not dispositive:

Although these definitions suggest that the word “sex” was understood at the time the regulation was adopted to connote male and female and that maleness and femaleness were determined primarily by reference to the factors the district court termed “biological sex,” namely reproductive organs, the definitions also suggest that a hard-and-fast binary division on the basis of reproductive organs—although useful in most cases—was not universally descriptive. The dictionaries, therefore, used qualifiers such as reference to the “sum of” various factors, “typical dichotomous occurrence,” and “typically manifested as maleness and femaleness.” Section 106.33 assumes a student population composed of individuals of what has traditionally been understood as the usual “dichotomous occurrence” of male and female where the various indicators of sex all point in the same direction. It sheds little light on how exactly to determine the “character of being either male or female” where those indicators diverge.

This analysis does not really work. There is no evidence that the use of “sum of,” and the word “typical,” were in any way directed at what we gender identity, or behavior aspects of “sex.” Indeed, these qualifying words referred specifically to physiological differences related to reproduction, not identification.  Even in 1972, society was aware of people who were not, from a  physiological, perspective, strictly male or female. This is what Webster’s Third was likely trying to capture, and is distinct from the notion of gender identity. The phrase “gender identity” appears nowhere in any of the contemporary dictionaries. To quote Justice Scalia from MCI v. AT&T, the Court will not accept a definition derived from “a single dictionary … which not only supplements the meaning contained in all other dictionaries, but contradicts one of the meanings contained in virtually all other dictionaries.”

In a footnote, Judge Floyd provides contemporary definitions, which (anachronistically) bolster its interpretation.

Modern definitions of “sex” also implicitly recognize the limitations of a nonmalleable, binary conception of sex. For example, Black’s Law Dictionary defines “sex” as “[t]he sum of the peculiarities of structure and function that distinguish a male from a female organism; gender.” Black’s Law Dictionary 1583 (10th ed.2014). The American Heritage Dictionary includes in the definition of “sex” “[o]ne’s identity as either female or male.” American Heritage Dictionary 1605 (5th ed.2011).

Such latter-day definitions are irrelevant for purposes of statutory originalism. In MCI v. AT&T, Justice Scalia further rejected reliance on a dictionary “not yet even contemplated” when the statute was drafted.

Judge Niemeyer’s dissent dismissed the majority’s efforts to disentangle the word “sex” from its traditional definition, involving physiological characteristics.

Any new definition of sex that excludes reference to physiological differences, as the majority now attempts to introduce, is simply an unsupported reach to rationalize a desired outcome.

In the end, however, the majority does not actually assert that the meaning of “sex” in 1972 included the notion of gender identity. Rather, under the uber-deferential Auer framework, Judge Floyd concludes that though the Department’s interpretation is not “intuitive,” it is “not plainly erroneous.”

We conclude that the Department’s interpretation of how § 106.33 and its underlying assumptions should apply to transgender individuals is not plainly erroneous or inconsistent with the text of the regulation. The regulation is silent as to which restroom transgender individuals are to use when a school elects to provide sex-segregated restrooms, and the Department’s interpretation, although perhaps not the intuitive one, is permitted by the varying physical, psychological, and social aspects—or, in the words of an older dictionary, “the morphological, physiological, and behavioral peculiarities”—included in the term “sex.”

On appeal to the Supreme Court, however, this argument will no longer cut it. Even accepting the definition from Webster’s Third (the late Justice is indeed rolling around in his grave), GG’s construction of the word “sex” to include gender identity is not consistent with how the phrase was originally understood. Judge Floyd’s opinion is not the best interpretation, nor is it even a good interpretation of Title IX. It only works, as the 4th Circuit explained, in the Auer context, where–so long as it is not inconsistent with the statute–it will be upheld. That argument no longer controls.

There is indeed a certain appeal to this mode of statutory originalism. During his February 23 press conference, White House press secretary Sean Spicer employed a statutory originalist mode of thinking, asking how members of Congress would have understood the provision in 1972. Here are a few excerpts:

“I mean, if you look at this, the law that was passed in 1972 did not contemplate or consider this issue.”

“The reality is, is that when you look at Title IX, it was enacted in 1972.  The idea that this was even contemplated at that is preposterous on its face.”

“There’s no way that you can read Title IX from 1972 — anybody — and say that that was even contemplated back then.  It just — there’s nobody that is possibly suggesting that the law that was passed in 1972 did that.”

Spicer, not a lawyer, was probably repeating what the Attorney General told him. But it works in very simple sound bites that people can understand. This is likely a preview of what the Justice Department’s position in this case will look like.

Mike Dorf argues to the contrary, citing Justice Scalia.

The district might argue that the Congress that enacted Title IX did not have trans cases in mind, but so what? As Justice Scalia wrote for the unanimous Court in the 1998 Oncale case, “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

Dorf’s argument conflates original intent with original public meaning. (Seeking the framer’s intent has long ago been abandoned by originalists of all stripes). Likewise, the GG Brief in Opposition states “When the regulation was drafted, few would have conceived that students like G. would have been assigned a female sex at birth and yet, as a result of hormone therapy, have facial hair and other male secondary sex characteristics, have a male designation on his government ID card, and live all aspects of life in accordance with his male gender identity.” (p. 31). All this may be true, but is irrelevant to understanding original meaning.

Title VII prohibits “discriminat[ion] . . . because of . . . sex.” Oncale presented the question whether Title VII is violated “when the harasser and the harassed employee are of the same sex.” That is, would male-on-male sexual harassment run afoul of Title VII? Justice Scalia’s analysis disregards what the drafters intended, instead focusing on what the provisions they enacted mean (or really meant, though he presumes the meaning of “sex” was unchanged in the three decades from the enactment of Title VII and Oncale, which he was almost certainly right about):

We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits “discriminat[ion] . . . because of . . . sex” in the “terms” or “conditions” of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements.

“The provisions of the law,” that is how statute is understood, trumps the drafter’s “principal concerns.”

To bring this back to GG, it is most certainly the case that the drafters of Title IX in 1972 were not concerned with how transgender students access bathrooms. (To the contrary, there is evidence in the legislative record of a concern that schools would not be able to separate male and female intimate facilities). However, the “provisions of the law” in Title IX cannot be interpreted as was the provision in Title VII. The word “sex” in Title VII had an ascertained meaning in 1968 and 1998, based on physiological characteristics.

There was no jurisprudential principle that would prevent Justice Scalia from applying Title VII to circumstances not envisioned by its drafters (male-on-male harassment) because the language they chose was susceptible to different conditions. The same cannot be said for Title IX, in which the language was not susceptible to sex-discrimination-based-on-identity. To make this originalist case, GG will have to provide contemporary evidence that in 1972, the word “sex” embraced not only physiological differences, but also–in the words of Respondent (p. 30)–“behavioral aspects of sex.” Citing later precedents about sex stereotypes may provide a rule of decision, but does not get you to original meaning. The merits brief has not yet been filed–I will report back once it is posted.

In closing, I’ll note that I predicted–even before the election–that the Chief Justice would rule for the government, by narrowing Auer deference, but ruling that the word “sex” is best understood to embrace gender identity. This would be King v. Burwell redux–strangling administrative deference, without issuing a controversial 5-4 decision on a weighty social issue. But who knows. My predictions are always wrong.

Cross-Posted at Lawfare

In Part I of this series, I discussed three critical errors in the Ninth Circuit’s decision in Washington v. Trump. First, the court grossly erred by treating a temporary restraining order—that contained no reasoning—as a preliminary injunction. Second, the panel offered zero analysis of the underlying statutory scheme, which is exceedingly complex and which, more importantly, informs the appropriate level of scrutiny. Third, even where Congress delegated its plenary powers to the President, thereby augmenting the executive’s inherent authority over national security, the panel still applied the strictest of scrutiny.

In Part II, below, I analyze the panel’s refusal to narrow an overbroad injunction. Once again, a study of the underlying statutory scheme could have afforded a plausible method of saving part of the order, while excising the unconstitutional portions. Next, I will critique the decision’s treatment of two leading precedents. First, the panel distinguished away with gossamer threads Kleindienst v. Mandel, which for four decades established a presumption of non-reviewability for executive decisions concerning exclusion. Second, the court misread Justice Kennedy’s concurring opinion in Kerry v. Din to establish a principle that courts can assess the President’s policy decisions for “bad faith.” Kennedy’s opinion, like Mandel before it, did no such thing; rather, courts could look only at whether individual consular officers acted in good faith, not whether the policy behind that decision was in bad faith.

As I noted yesterday, personal sentiments about this egregious order should not shade a candid assessment of precedent and constitutional law. This opinion, which enjoins a policy I personally find deeply regrettable, is itself deeply regrettable.

Entry and Admission for Lawful Permanent Residents

While Judge Robart’s injunction was narrowly reasoned, it was broadly applied. First, it enjoined the enforcement of Section 3(c) of President Trump’s January 27 executive order, which “suspend[ed] entry into the United States, as immigrants and nonimmigrants, of such persons [from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen] for 90 days.” Second, it enjoined the enforcement of Section 5(a) of the order, which immediately suspended the Refugee Admissions Program for 120 days. Third, the order enjoined Section 5(b), which would “prioritize refugee claims made by individuals on the basis of the religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” Without any explanation, the court enjoined this provision even though it would not go into effect for nearly four months; the state of Washington conceded during the district court proceedings that this provision “does not necessarily require immediate injunction.” (Transcript 15).

Fourth, the order enjoined Section 5(c) which suspended the entry of “nationals of Syria as refugees” until the President determines that their entry is “consistent with the national interest.” Fifth, the court enjoined Section 5(e), which gave the government discretion to admit refugees “on a case-by-case basis” in cases where “the person is a religious minority in his country of nationality facing religious persecution.”

On its own terms, Judge Robart’s decision applied “on a nationwide basis . . . all United States borders and ports of entry.” (To support the nationwide injunction, Washington argued that immigration law had to be uniform; ironically, the state had opposed this exact argument in United States v. Texas). Judge Robart made clear that the temporary restraining order was indeed temporary, as the parties were asked to propose a briefing schedule for a preliminary injunction hearing three days later.

In the immediate aftermath of the executive order, there was widespread confusion about its effects. Many lawful permanent residents (LPRs)—that is, aliens with green cards—were denied entry to the United States. Due to their unique status, the applicability of the executive order to LPRs was not at once clear. As a threshold matter, under our immigration laws, nothing requires Congress to treat the broad class of “alien” in a single manner, nor can constitutional scrutiny be applied to the undifferentiated class of ‘aliens’ without assessing the characteristics of the discrete groups that comprise that class. Justice Stevens’s opinion for the Court in Matthews v. Diaz (1976) explains this framework:

The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country.

Lawful permanent residents are fully authorized to live permanently in the United States, though they are not citizens.  LPRs have a far stronger attachment to the United States than aliens seeking admission with visas, as the presumption is that members of the latter class intend to return to their country of origin. The courts have viewed the special status of LPRs to involve certain due process rights that other aliens lack. This issue is complicated by the fact that the Due Process Clause does not have a simple on/off switch for LPRs and other types of aliens. It can best be understood as applying along a continuum. LPRs at the far end of the continuum have the strongest conceivable due process rights when seeking admission. Aliens with a less permanent attachment to the United States have, on a sliding scale, far fewer rights. Refugees, for example, who lack any visa, receive all the process they are due when their application is denied.

As relevant to our discussion, LPRs that travel abroad and return are treated differently than other aliens. Prior to the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), “entry,” an important term of art, was defined as “any coming of an alien into the United States, from a foreign port or place.” 8 U.S.C. § 1101(a)(13) (1988 ed.). Notwithstanding this general definition, LPRs were afforded a special quasi-constitutional protection, that was grounded in due process. As Justice Ginsburg explained for the Court in Vartelas v. Holder, under the old regime, an LPR “could travel abroad for brief periods without jeopardizing his resident alien status.” Quoting from the Court’s 1963 decision in Rosenberg v. Fleuti, Justice Ginsburg noted that LPRs “were not regarded as making an ‘entry’” unless their trip “meaningfully interrupt[ed] . . . the alien’s [U.S.] residence.” As a result, “[a]bsent such ‘disrupti[on]’ of the alien’s residency, the alien would not be ‘subject … to the consequences of an ‘entry’ into the country on his return.” In other words, an LPR who physically entered the United States did not legally “enter” the United States unless the departure interrupted her residency.

By way of the 1996 IIRIRA, in most regards, Congress replaced the concept of “entry” with that of “admission.” However, 8 U.S.C. § 1182(f) still permits the President to “suspend the entry” (not admissibility) of “any class of aliens as immigrants or nonimmigrants” that he deems “detrimental to the interests of the United States.” This provision, drafted in 1952, does not speak of “admission.” President Trump relied on this statute to support his January 27 executive order. The interplay between these “entry” and “admission” is, frankly, complicated, but critical to understanding the applicability of the executive order to LPRs.

Under current law, “admission” is generally defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” 8 U.S.C. § 1101(a)(13)(A). Although the Board of Immigration Appeals determined that the Fleuti doctrine did “not survive the enactment of the IIRIRA as a judicial doctrine” with respect to this provision, elements of the case do survive: like under the old regime, not all aliens that gain physical admission to the United States have to seek “admission.” In the same section, Congress stated that an LPR “shall not be regarded as seeking an admission into the United States for purposes of the immigration laws unless the alien” meets one of six factors. 8 U.S.C. § 1101(a)(13)(C)(i)-(vi). For example, if an LPR was “absent from the United States for a continuous period in excess of 180 days” (ii) or “engaged in illegal activity after having departed the United States” (iii), upon her return, she would have to seek admission. (In Re Collado-Munoz, 21 I. & N. Dec. 1061, 1066 (BIA 1998) (“returning lawful permanent resident who is described in sections 8 U.S.C. § 1101(a)(13)(C)(i)-(vi) of the Act shall be regarded as ‘seeking an admission’ into the United States.”)). The converse of this rule is that, as a general matter, an LPR that does not meet any of these six criteria does not seek admission upon her return to the United States.

These precedents raise a question about whether the President’s executive order, as drafted, applies to LPRs. Courts should conclude that it did not. Denying LPRs admission, without any hearing, would likely be unconstitutional. In Landon v. Plasencia, the court held that the Due Process Clause affords LPRs “a fair hearing when threatened with deportation.” 459 U.S. 21, 33-34 (1982). The avoidance canon would counsel reading the order in a way to exclude LPRs. Such a reading that harmonizes the pre- and post-IIRIRA precedents, is not only possible, but is persuasive. (This is an argument that the government could have, but did not adduce in its own defense).

Under this framework, if an LPR arrives at the border, and meets one of the six factors, he is seeking admission (under IIRIRA) and entry (under 1182(f)). If an LPR arrives at the border, and does not meet any of the six factors, he is not seeking admission (under IIRIRA), nor is he seeking entry (under 1182(f)). LPRs, who are not otherwise subject to the six inadmissibility factors, do not seek entry, and thus cannot be denied entry under 1182(f). The President’s executive order, therefore, which denies “entry” to classes of aliens, would not apply on its own terms to LPRs that are not seeking admission. This construction harmonizes the terms “entry” in 8 U.S.C. § 1182(f) and “admission” under IIRIRA, and avoids any constitutional defects with the order.

This construction is consistent with how the White House understands its own order. Three days after the order was signed, Donald F. McGahn II, Counsel to the President, announced that LPRs would not be subject to the policy. His memorandum sent to the acting Secretaries of State and Attorney General, as well as the Secretary of Homeland Security, stated, “to remove any confusion I now clarify that Sections 3(c) and 3(e) do not apply” to “the entry” of “lawful permanent residents.” McGahn instructed the secretaries to “immediately convey this interpretive guidance to all individuals responsible for the administration and implementation of the Executive Order.” The memorandum offered no analysis, but is consistent with this statutory framework. Regardless of the effect of Mr. McGahn’s memorandum—I agree with the court that it is in no way binding on the government—as a statutory matter, the Executive Order is best understood not to include LPRs.

Due Process for Non-Resident Aliens

Washington’s strongest claim to relief is based on the denial of entry of LPRs who reside in the state. To the extent that LPRs are not subject to the Executive Order—or if the order was redrawn to exclude LPRs—then the Ninth Circuit would have had to reach the far more difficult question about what constitutional rights attend aliens without a permanent residency status who are seeking admission. The court attempts to fudge this point, noting that “The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens,” where “these categories of aliens” applies (presumably) to all aliens affected by the Executive Order, including refugees. This burden is contrived. No court has ever held that aliens, with status less than LPRs, that are seeking entry, have due process rights. To the contrary, in Plasencia, the Court reaffirmed 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.”

The court, however, defends its due process holding as proper even if “lawful permanent residents were no longer part of this case.” (In the event the executive order is redrawn to exclude LPRs, this fallback argument becomes critical). First, it cites the “due process rights of other persons who are in the United States, even if unlawfully.” Once an alien is within the United States, the due process clause protects her. There is no dispute about this. However, the Executive Order only concerns entry of those outside the United States. (Arriving at an airport checkpoint does not mean you are on U.S. soil quiet yet). Second, citing Plasencia, the panel refers to the due process rights of “non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart.” This argument is misleading, because the referenced portion of Plasencia refers to a “permanent resident alien”—that is, an LPR. Third, the panel wrote without any analysis, “Refugees, see 8 U.S.C. § 1231 note 8.” As commenter Asher Steinberg noted on PrawfsBlawg, this citation is in error. Section 1231 does not have a “note 8.” More likely than not, a law clerk inadvertently copied and pasted from a common string cite for “8 U.S.C. § 1231 note; 8 C.F.R. §….” Regardless of what the court intended, there is zero precedent to the effect that the Due Process Clause affords refugees outside the United States a hearing, let alone any sort of judicial review.

The fourth predicate offered by the panel warrants the closest study:

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).

A quick read of these twenty-two words would lead the reader to believe that the Supreme Court in 1972, as reiterated by a recent concurring and dissenting opinion, established the principle that U.S. citizens, or other American institutions, that have relationships with any alien overbroad, can assert the panoply of procedural due process rights on their behalf. This is not an accurate statement of law.

Kerry v. Din

Fauzia Din, a U.S. citizen, was married Kanishka Berashk, an Afghan national, and a former civil servant in the Taliban. Din applied for an immigrant visa for her husband. Berashk was interviewed at the U.S. embassy in Islamabad. The consular officer told him that he was inadmissible under 8 U.S.C. § 1182(a)(3)(B), which deems inadmissible aliens who had engaged in “terrorist activities.” Berashk was not given any reason for the denial beyond the citation to 8 U.S.C. § 1182(a)(3)(B). Berashk himself had no cause of action. In light of the 1972 precedent of Kleindienst v. Mandel, the husband had “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.” The Ninth Circuit, over the dissent of Judge Clifton, ruled for Din.

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 no five-member majority. (At the time, I speculated that Justice Kennedy lost the majority opinion, as Justice Scalia’s concurring opinion fractured off votes). Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, dissented.

Justice Scalia’s opinion rejected Din’s claim. Because she could not assert a “life” or “property” interest, her claim depended on the recognition of a substantive due process right to be with her husband. 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 stopped short of asserting a fundamental substantive due process right, but claims that the right is significant enough to warrant procedural due process.

Justice Kennedy’s opinion, as usual, was far more nuanced. His opinion recognized that “even assuming” Din has a protected liberty interest, the “notice she received regarding her husband’s visa denial satisfied due process.” Kennedy’s opinion stressed that the Court did not decide “whether a citizen has a protected liberty interest in the visa application of her alien spouse.” Contrast this assertion with the Ninth Circuit’s statement that “applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” The word “might” does not even come close to bearing the weight that the panel places on it. Justice Kennedy’s concurring opinion specifically stated that the Court did not reach the exact issue the Ninth Circuit said “might” prevail. Even then, Justice Kennedy found that the minimal notification given to Din (that her husband was inadmissible, without any further explanation) satisfied due process.

Kleindienst v. Mandel

Justice Kennedy’s narrow construction is reaffirmed by his recitation of Kleindienst v. Mandel, the other precedent relied on by the Ninth Circuit panel. The 1972 case involved college professors who invited Dr. Ernest Mandel, a self-professed Marxist, to speak at Stanford University. After Mandel was denied a visa—in light of his advocacy for “world communism”—he petitioned the Attorney General for a waiver. The Attorney General declined, citing the fact that Mandel had abused temporary visas on past trips to the United States. The Stanford professors brought suit, asserting a First Amendment right to “‘hear his views and engage him in a free and open academic exchange.’” The denial of the waiver, they asserted, violated this right. (Not a single word in Mandel explains why the professors suffered an Article III injury for purposes of standing; it is difficult to reconcile this decision with later cases such as Lujan and Clapper).

To the extent that U.S. citizens can assert due process rights on behalf of foreign nationals, Kennedy explains, the judicial inquiry is limited to whether the “Government had provided a ‘facially legitimate and bona fide’ reason for its action.” He added that “[o]nce 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.” Kennedy recognized that imposing a more exacting scrutiny would with respect to the government “‘refusing a [visa] to the particular applicant,’” would usurp “a nuanced and difficult decision Congress had ‘properly … placed in the hands of the Executive.’”  What process was due for Mandel? The disclosure of his “abuse of past visas” was sufficient, and that “ended [the Court’s] inquiry.”

Applying the Mandel framework to Din, Justice Kennedy concludes that the husband’s denial of a visa 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.” The only process that was due was the “consular officer’s determination that Din’s husband was ineligible for a visa [as] controlled by specific statutory factors” of § 1182(a)(3)(B), which “establish[ed] specific criteria for determining terrorism-related inadmissibility.” In this case, the consular officer told the husband that he did not satisfy the statute’s requirements. In conclusion, Justice Kennedy wrote, the “Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.”

“Look Behind”

However, as usual, Justice Kennedy left some wiggle-room in his opinion. As he explained in his opinion in Din, in Mandel, the Attorney General had “nearly unbridled discretion” about issuing waivers. (Here, the word “nearly” may provide significant wiggle-room). In contrast, “§ 1182(a)(3)(B) specifies discrete factual predicates the consular officer must find to exist before denying a visa.” Here, the husband admitted that he worked for the Taliban government, “which, even if itself insufficient to support exclusion, provides at least a facial connection to terrorist activity.” In the general course, courts cannot “look behind” the denial of the visa for “additional factual details beyond what its express reliance on § 1182(a)(3)(B) encompassed.” In other words, normally, courts are not permitted to inquire about what additional facts went into the officer’s denial of the visa, beyond what the statute requires. However, Justice Kennedy went beyond the holding of Mandel, finding that presumption is flipped upon an “affirmative showing of bad faith on the part of the consular officer.” In such cases, the courts can “look behind” the consular officer’s decision. This nebulous opinion raises four distinct questions which will influence the outcome of Washington v. Trump. Court watchers would be well-served to carefully divine what it can from these entrails.

First, is Din distinguishable from Washington because unlike § 1182(a)(3)(B), § 1182(f) does not provide specific “discrete factual predicates” to support the denial of entry? Under the latter provision, when the President determines that a class of aliens is “detrimental” to the interests of the United States, all members of that class are denied entry. During oral arguments, Judge Michelle Friedland asked Justice Department attorney August E. Flentje about this distinction. In both Mandel and Din, the judge began, there were “specific statutes by Congress that set forth specific criteria that were then applied factually.” Judge Friedland asked, “[the] President is not applying any specific criteria from Congress [with the executive order] is he?” Flentje replied that indeed the President was indeed applying the statutory factors set in § 1182(f).

We should not overstate how “specific” the statute in Din was. The husband was denied a visa because he “engaged in a terrorist activity.” That phrase is not defined and gives the government wide latitude to determine what was a “terrorist activity.” There is no requirement of a conviction or arrest; a mere inkling would suffice. A proclamation that an alien is “detrimental to the interests of the United States” is indeed more capacious, but as a matter of degree, not of kind. Rather than addressing this point, and arguing that § 1182(f) did not provide adequate guidance, the Ninth Circuit instead vaults over these meaty questions, and gerrymanders the precedents, which allows it to distinguish away Mandel with gossamer threads:

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.

The Attorney General’s decision in Mandel, like the decisions here, is based on “the application of a congressionally enumerated standard to the particular facts presented by that visa application.” Section 1182(f) permits the President to deem classes of aliens from certain countries as “detrimental” to the interests of the United States. Then, a consular official assesses “the particular facts presented by that visa application”—that is, whether an alien is a national of one of the seven nations specified by the proclamation. If so, entry is denied. The situations are factually analogous. The panel, however, disregards these important nuances in Mandel and Justice Kennedy’s concurring opinion. (The judges also 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.” The acting solicitor general did no such thing.).

Second, is Din limited to individualized decisions made by consular officers, or does it apply to wide-ranging policies adopted by the President? Mr. Flientje made this point cogently during his arguments: “Whatever Din says about looking at consular decision making does not suggest we look behind national security determination made by the President, where the four corners of that determination are based on the congressional determination that the countries at issue are of concern.” (1:00:30). He may as well have been reading from Justice Kennedy’s opinion. At every step in the concurrence, the focus was not on the policy itself, but the individual officer who made the decision. Judge Friedland interrupted Flientje, and said, “I thought you were using Din and Mandel as main authority for unreviewability, and so now you are saying those are distinguishable. I’m a little confused if you are relying on those cases or not.” (1:01:00). Her comment is confusing. Flientje was specifically referring to the boundaries imposed by Kennedy’s concurring opinion. The DOJ lawyer replied, “We are definitely relying on them for the limits that Court’s review these types of issues.” Further, as I noted in my post yesterday, this question implicates the classic distinction between Londoner and Bi-Metallic. If due process now attends to broad policy statements, and not just individualized determinations, large swaths of the administrative state are now susceptible to attack.

Third, does the “bad faith” inquiry focus on the subjective motivations of the Executive branch at large, or is it confined to the individual consular official that acts in “bad faith?” Prior to Washington v. Trump, the courts interpreted Mandel to focus on the latter definition. For example, in Bustamante v. Mukasey, the Ninth Circuit defined bad faith under Mandel in terms of whether consular officer “did not in good faith believe the information he had.” In that case, the plaintiffs alleged that an applicant “never has been a drug trafficker,” as the officer concluded, but they could not demonstrate that the consular officer knew his report was false. “It is not enough to allege that the consular official’s information was incorrect,” the panle held. The “bad faith” analysis is limited to its application by an individual consular officer.

In Din, Justice Kennedy asserted that providing the husband with the minimal information it did was a “facially and legitimate bona fide reason” for denying the visa under § 1182(a)(3)(B). There was no assertion that the consular officer knew the information was false; indeed the information was conceded as accurate. With respect to Washington v. Trump, the denial of entry to an alien from one of the seven nations would likewise be “facially and legitimate bona fide reason,” specifically because it is done pursuant to § 1182(f). There is no allegation of a deviation from the policy in bad faith by a rogue consular officer. One could imagine a situation where, under the executive order, a consular official modifies a visa application, such that a Pakistani national is incorrectly listed as an Iranian national, and is thus denied entry. That would be an exercise of bad faith.  However, simply denying a visa because of a person’s nationality—an accurate fact—would not be in bad faith under the proclamation issued pursuant to § 1182(f) .

What is most perplexing about the Ninth Circuit’s opinion, which was joined by Judge Clifton, is that Judge Clifton dissented from the panel decision in Din. In that case, he stated succinctly that the “good faith” analysis was limited to the behavior of the “consular official.” (718 F.3d at 869). He said nothing about the subjective motivations of the policy maker. Rather, the denial was “based on law” and “the reason was at least “facially legitimate.” Specifically, Judge Clifton wrote, “The factual basis of the consular’s decision is not within our highly limited review.” In other words, the manner in which the consular official denied the visa, that is “based on law,” is beyond the ken of the courts. The Supreme Court ultimately vindicated his dissent!  It is unclear how Judge Clifton can reconcile his opinion in Din with the per curiam opinion in Washington v. Trump.

There is a fourth question that I suspect will ultimately control: even assuming that process is due, then what process is due? Justice Kennedy states, without equivocation, that the only process Din was due was the notification that her husband was denied a visa based on § 1182(a)(3)(B). Citing the importance of Congress’s control over national security concerns, Justice Kennedy concluded that “notice given was constitutionally adequate, particularly in light of the national security concerns the terrorism bar addresses.” Further, he noted, “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.” Regardless of what is divined from the entrails, this analysis portends the result in Washington: if an alien is denied entry, with a notice stating that the denial is due to § 1182(f), he is afforded all the process that he is due. No more is needed.

There was not even the slightest hint in Din that aliens overseas are entitled, in the words of the Ninth Circuit’s panel, to “notice and a hearing prior to restricting” her “ability to travel. This holding is made up out of whole cloth. Even if the aliens covered by the Executive Order are protected by the Due Process Cause—a striking proposition with respect to refugees in particular, who have no connection to the United States—then there is no conceivable requirement that they be afforded a hearing before being denied entry. A consular stamp that says “denied under § 1182(f)” will provide all the process that is due. The end result of the court finding that a due process right attaches yields the same end result: the President can deny entry through a consular notification that the alien is barred by his proclamation under § 1182(f). Here, the panel opinion collapses under its own weight.

Certainly, 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 invalidating the executive order.

This two-part series will be published later this week as Josh Blackman, The Ninth Circuit’s Contrived Comedy of Errors in Washington v. Trump, 95 Tex. L. Rev. See Also __ (forthcoming 2017). I will post a link on my blog, JoshBlackman.com, when it is available for download.

Cross-Posted on Lawfare.

This is the first part in a two-part series. Part II will be published tomorrow.

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.

On Thursday, I spoke with Nina Totenberg about President Trump’s criticisms of the judiciary, and how his remarks follow precedents set by President Obama. (I discuss that theme here). Half of those sentiments made it into the segment, for which I am grateful. You can listen here:

And here is a transcript of my remarks:

Presidents, for the most part, avoid public feuds with courts for a practical political reason.

“Trump’s statements are extremely self-defeating,” observes Josh Blackman, a constitutional law professor at South Texas College of Law Houston.

“The more he says the courts are biased or will rule against him because they’re stupid,” comments Blackman, “it subconsciously increases the chances that they will rule against him.”

There is a more serious reason Trump should avoid criticizing judges too, Blackman says. Under the U.S. system of three branches of government, the judicial branch — the courts — ultimately are the checks on the legislative and executive branches when they exceed or even abuse the limits of their power.

One portion that made it into the transcript, but not the audio segment, expressed my concern of what would happen if Trump’s judges display disloyalty by ruling against him:

Less than a month into Trump’s presidency, many leading lawyers and scholars are worried. Professor Blackman fears that if Trump’s nominee for the Supreme Court Neil Gorsuch is confirmed and ends up ruling against the president, the next Trump nominee would be “a crony.”

I always expected Trump to follow through on his promise to receive counsel from the Federalist Society to replace Justice Scalia. My concern, however, was always about subsequent nominations. I shared this sentiment with Josh Gerstein of Politico two weeks ago:

Some conservatives expect to be delighted by Trump’s pick this week but fear his fondness for the Federalist Society and one of the group’s leaders, Leonard Leo, may fade over time if the newly appointed judge crosses the Trump administration.

“I’m worried if he finds judges ruling ways he doesn’t like, he’ll simply stop listening to his advisers and start appointing his cronies,” Blackman said. “My only hope is that he will appoint as many judges as possible before he decides to stop calling Leonard Leo.”

I hope Trump stays strong on judges, and not just for SCOTUS. There are over 100 district and circuit vacancies. George W. Bush made his first batch of nominations on May 9, 2001. That slate included was all-star cast, including Michael McConnell, Jeff Sutton, John Roberts, and Miguel Estrada. Get going!