In immigration law, there are two broad categories of executive actions: exclusion and removal. The former policy prevents aliens from entering the country, and the latter policy removes aliens already in the country. As a general matter, aliens in the United States benefit from a host of constitutional, statutory, and treaty-based protections, reinforced by robust judicial review. But aliens seeking entry stand in a different position. They generally lack any constitutional rights and can only apply for admission through fairly intricate statutory or treaty-based processes. And a denial of a visa is generally subject to a doctrine of consular non-reviewability. In practice, an alien can't sue the federal government if a visa is denied.
Still, American citizens and other organizations can sponsor, or seek the admission of certain aliens. Indeed, the courts have held that when the government denies entry to an alien, that denial can violate the First Amendment rights of U.S. Citizens. This doctrine stems from the case of Kleindienst v. Mandel (1972). American professors were allowed to challenge the denial of entry of a Marxist professor from Belgium, on the ground that the professors wanted to hear the professor's message. I've long thought Mandel was wrongly decided. The professors should have no basis to challenge the denial of entry of an alien based on the professors' asserted First Amendment interest. Indeed, with the age of Zoom, the notion that the United States has to admit a professor to talk to college students does not fly.
Four decades later, a fractured Court in Kerry v. Din (2015) held that an American citizen has some due process interest to ensure a family member can seek entry to the United States. I do not think Justice Kennedy's plurality opinion in that case stands for much anymore. More recently, Trump v. Hawaii (2018) broadly read the President's power to exclude aliens. And, despite unified Democratic government, Congress did not actually modify that statutory authority. It should be no surprise, then, that President Trump seeks to use this authority.
