The Ninth Circuit did not hold that aliens abroad who do not presently hold visas or green cards have any constitutional right to travel to the United States. That is the vast majority of applications of the executive order. The court spent several paragraphs explaining why the Order cannot constitutionally be applied to green card holders. But the Administration says the executive order never properly applied to green card holders, and after initial confusion about that question, has not applied it to them. In court, the government also conceded the Order could not apply to previously admitted aliens temporarily abroad. The Ninth Circuit panel stated that in addition to these two classes, the Order might also be unconstitutional as applied to unlawful aliens now inside the country and to some other aliens with close relations to U.S. citizens.
Even assuming the court is right about all four groups (which is far from certain), the fact remains that the Order is constitutional with respect to the vast majority of its applications. Thus, the temporary restraining order (TRO) halting the Order in its entirety is improper. The Ninth Circuit did not dispute that the TRO is overbroad. The court refused to narrow the TRO solely because the government’s concessions did not extend to two of the four classes the court thinks might be entitled to protection: “There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.” That is no reason not to narrow the TRO with respect to all the many applications to which the Order is plainly constitutional.
The court then said: “More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.” That is precisely backwards. If the State of Washington’s case is a facial challenge, the existence of a nontrivial number of constitutional applications is reason to reject the challenge. If the State of Washington’s case is an as-applied challenge, relief must be confined to those applications that are unconstitutional. The cases are not precisely parallel, but it bears mention that when the Supreme Court found the Obamacare statute unconstitutional in some but not all respects, it went out of its way to preserve the rest.
