There is no precedent to support this claimed
unreviewability, which runs contrary to the fundamental
structure of our constitutional democracy. See Boumediene
v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that,
even by congressional statute, Congress and the Executive
could eliminate federal court habeas jurisdiction over enemy
combatants, because the “political branches” lack “the
power to switch the Constitution on or off at will”). Within
our system, it is the role of the judiciary to interpret the law,
a duty that will sometimes require the “[r]esolution of
litigation challenging the constitutional authority of one of
the three branches.” Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S.
919, 943 (1983)). We are called upon to perform that duty
in this case.
Although our jurisprudence has long counseled
deference to the political branches on matters of immigration
and national security, neither the Supreme Court nor our
court has ever held that courts lack the authority to review
executive action in those arenas for compliance with the
Constitution. To the contrary, the Supreme Court has
repeatedly and explicitly rejected the notion that the political
branches have unreviewable authority over immigration or
are not subject to the Constitution when policymaking in that
context. See Zadvydas v. Davis, 533 U.S. 678, 695 (2001)
(emphasizing that the power of the political branches over
immigration “is subject to important constitutional
limitations”); Chadha, 462 U.S. at 940-41 (rejecting the
argument that Congress has “unreviewable authority over
the regulation of aliens,” and affirming that courts can
review “whether Congress has chosen a constitutionally permissible means of implementing that power”).6 Our
court has likewise made clear that “[a]lthough alienage
classifications are closely connected to matters of foreign
policy and national security,” courts “can and do review
foreign policy arguments that are offered to justify
legislative or executive action when constitutional rights are
at stake.” American-Arab Anti-Discrimination Comm. v.
Reno, 70 F.3d 1045, 1056 (9th Cir. 1995).
...
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.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights
also apply to certain aliens attempting to reenter the United
States after travelling abroad. Landon v. Plasencia, 459 U.S.
21, 33-34 (1982). The Government has provided no
affirmative argument showing that the States’ procedural
due process claims fail as to these categories of aliens. 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. See id. (“[T]he
returning resident alien is entitled as a matter of due process
to a hearing on the charges underlying any attempt to
exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449,
460 (1963))). Nor has the Government established that the
Executive Order provides lawful permanent residents with
constitutionally sufficient process to challenge their denial
of re-entry. See id. at 35 (“[T]he courts must evaluate the
particular circumstances and determine what procedures
would satisfy the minimum requirements of due process on
the re-entry of a permanent resident alien.”).
...
The Government has pointed to no evidence that any
alien from any of the countries named in the Order has
perpetrated a terrorist attack in the United States.7 Rather
than present evidence to explain the need for the Executive
Order, the Government has taken the position that we must
not review its decision at all.8
We disagree, as explained
above.
By contrast, the States have offered ample evidence that
if the Executive Order were reinstated even temporarily, it
would substantially injure the States and multiple “other
parties interested in the proceeding.” Nken, 556 U.S. at 434
(quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)).
When the Executive Order was in effect, the States contend
that the travel prohibitions harmed the States’ university
employees and students, separated families, and stranded the
States’ residents abroad. These are substantial injuries and
even irreparable harms. See Melendres v. Arpaio, 695 F.3d
990, 1002 (9th Cir. 2012) (“It is well established that the
deprivation of constitutional rights ‘unquestionably
constitutes irreparable injury.’” (quoting Elrod v. Burns,
427 U.S. 347, 373 (1976))).
