In refusing to overturn the temporary restraining order against President Trump's travel ban, the U.S. Court of Appeals for the 9th Circuit emphasized an argument that has received relatively little attention in coverage of the case. Washington and Minnesota, which brought the lawsuit that resulted in the TRO, say many of the people covered by the ban have a right to due process that the government has not even pretended to respect. The 9th Circuit thinks the states have a good shot at proving that claim. It concludes that "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."
In addition to suspending the admission of refugees for 120 days, Trump's order imposes a 90-day ban on travelers from seven overwhelmingly Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Washington and Minnesota argue that the order impermissibly discriminates against Muslims, a claim that has generated much public debate. The 9th Circuit thinks "the States' claims raise serious allegations and present significant constitutional questions," and it rejects the government's position that judges weighing those questions should pay no attention to public statements made by Trump and his advisers. But the appeals court devotes nearly three times as much space to the due process argument.
The 9th Circuit notes that the ability to re-enter the country after going abroad, or to travel in anticipation of that ability, is a "liberty interest" protected by the Fifth Amendment. Yet "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." In fact, "the Government does not contend that the Executive Order provides for such process," since "the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause."
The appeals court was not persuaded by that argument. Foreign nationals who are outside the United States and have never lived there, such as would-be visitors applying for visas or refugees seeking permission to resettle in the U.S., cannot assert due process rights. But according to the Supreme Court, the 9th Circuit notes, "The procedural protections provided by the Fifth Amendment's Due Process Clause are not limited to citizens. Rather, they 'appl[y] to all 'persons' within the United States, including aliens,' regardless of 'whether their presence here is lawful, unlawful, temporary, or permanent.' These rights also apply to certain aliens attempting to reenter the United States after travelling abroad."
In the 1982 case Landon v. Placencia, for example, the Supreme Court held that a lawful permanent resident had a right to due process when the Immigration and Naturalization Service tried to stop her from returning to the United States after "a brief visit to Mexico that involved an attempt to smuggle aliens across the border." The Trump administration initially said the travel ban applied to lawful permanent residents. Then it issued a blanket waiver saying their entry is "in the national interest." The administration's latest position, laid out in a February 1 memo from White House Counsel Donald F. McGahn II, is that the order never applied to lawful permanent residents.
The 9th Circuit rejected that assurance, questioning McGahn's authority to revise Trump's order or to require that other government officials adhere to his interpretation. "Moreover," it says, "in light of the Government's shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings."
In any case, the appeals court says, green-card holders are not the only people affected by the order with potential due process claims. They also include "non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart" (such as foreign nationals working in the U.S. or attending American universities) and "applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert" (such as relatives of citizens or scholars hired by American universities). Even refugees could make due process claims under 18 USC 1231 if they seek asylum after arriving in the United States.
"The Government has provided no affirmative argument showing that the States' procedural due process claims fail as to these categories of aliens," the 9th Circuit says. "For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry."
Assuming that some people affected by the order have a right to due process, it is not clear what it would entail. The only potential relief provided by the order comes from discretionary, case-by-case waivers "in the national interest." The 9th Circuit suggests that due process would at least require "notice and a hearing prior to restricting an individual's ability to travel," and presumably the hearing would do more than verify that the individual comes from one of the banned countries.
The Trump administration asked the appeals court, if it was not prepared to block the TRO entirely, to narrow its scope so that it covers only "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future." That category would include many of the people with potential due process claims, the 9th Circuit notes, but not all of them, since it omits "aliens who are in the United States unlawfully," who "have due process rights as well," and "citizens who have an interest in specific non-citizens' ability to travel to the United States."
Rather than seek a narrower TRO, Trump could rewrite his order to focus on unvetted foreign nationals who have never visited the U.S., which would address most of the due process concerns while bolstering the credibility of his claim that he is trying to protect Americans from terrorists. "Even if the TRO might be overbroad in some respects," the 9th Circuit says, "it is not our role to try, in effect, to rewrite the Executive Order. The political branches are far better equipped to make appropriate distinctions."