The Ninth is, of course, correct that due process protections apply to legal permanent residents (i.e., "green card" holders). Yet even though the Administration has said it won't apply the limitations to permanent residents, it held that such application was not moot.
The Government has argued that, even if lawful permanent residents have due process rights, the States' challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued "[a]uthoritative [g]uidance" stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government's contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel's interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, 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. On this record, therefore, we cannot conclude that the Government has shown that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc., v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (emphasis added).
Failure to exempt legal permanent residents in the text of the original order was an error, and the error could be remedied by issuing a new order.
Once we get beyond legal permanent residents, the Ninth Circuit opinion becomes much easier to attack and much more difficult to defend.
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).
Let's take these one-by-one. Zadvydas v. Davis, 533 U.S. 678 (2001) does hold that persons in the country have due process rights, even if here illegally. However, on the very page the Ninth Circuit cites, the Supreme Court draws a sharp distinction between those who are here and whom the government is trying to remove and those who are trying to enter the country, even if they are re-entering after a previous stay. "It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. [Citations.] But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all 'persons' within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent." Certainly an alien who was here illegally and left has no due process rights regarding re-entry.
The Ninth cites Landon v. Plasencia, 459 U.S. 21, 33-34 (1982) for the proposition that due process rights extend to non-immigrant visaholders who wish to depart and return. Not only does Landon not say that at the point cited, it comes pretty close to saying the opposite.
Plasencia entered the country as a permanent resident alien. That fact was critical to the decision. The Court reiterated the general rule. "This Court has long held 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." Then the Court notes the exception. "As we explained in Johnson v Eisentrager, 339 U. S. 763, 770, (1950), however, once an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly. Our cases have frequently suggested that a continuously present resident alien is entitled to a fair hearing when threatened with deportation [citations]." Even a permanent resident alien can lose his right to due process for re-entry if he leave for 20 months, the Court notes at 33-34, citing a 1953 precedent, but Plasencia was only gone a few days.
There is nothing here to support the citation for non-immigrant visaholders.
For refugees, we have the curious citation to "8 U.S.C. § 1231 note 8." It is not clear what "note 8" refers to. The section as a whole deals with "Detention and removal of aliens ordered removed," which does not seem to have anything to do with refusing entry at the border. The Supreme Court has made very clear that removal and non-admission are very different things, as noted above.
For the notion that the interests of residents in securing visas for related persons supports judicial review here, the Ninth Circuit cites a couple of individual opinions, which are not precedents, and Kleindienst v. Mandel, 408 U.S. 753 (1972). But that case actually strongly reaffirmed the executive power to exclude nonresident aliens in its discretion. In that case, Congress excluded a class of persons and gave the executive discretion to grant waivers. The plaintiffs wanted to litigate whether the Attorney General had denied a waiver to invited Marxist speakers in violation of the First Amendment rights of the hosts. No dice, said the Court.
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under § 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.
Looking behind the exercise of discretion based on a facially valid reason is exactly what the Ninth Circuit did in this case.
In this case, Congress has delegated essentially unlimited discretion to the President in 8 U.S.C. § 1182(f):
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
If I wanted to write a statute to give the President complete and unreviewable discretion, that is how I would write it.
For permanent resident aliens, yes, the Due Process Clause must be considered. For all other aliens presently outside the country, the President may suspend admission on the terms he thinks proper. The Ninth Circuit is wrong to the extent that it indicates that the plaintiffs have a substantial chance of success on the merits other than for permanent residents.
Should the Administration take the present case to SCOTUS in addition to issuing a new order? I think so. Even though the Ninth declines to "rewrite" the order, there is ample precedent for simply construing a regulation not to apply to resident aliens where such application would raise constitutional issues. See Landon, at 33. That is what the courts should have done in this case.