In a case such as this involving information that the government contends is classified, we may review the classified materials ex parte and in camera. See, e.g., Kashem v. Barr, 941 F.3d 358, 385 (9th Cir. 2019); Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1086 (9th Cir. 2010) (en banc); Kasza v. Whitman, 325 F.3d 1178, 1180 (9th Cir. 2003); Kasza v. Browner, 133 F.3d 1159, 1168-69 (9th Cir. 1998). Having intently studied the classified and unclassified materials in the record, we agree with the district court's considered assessment.
"The TSDB is maintained by the" Screening Center, which places an individual in the Database "when there is ‘reasonable suspicion’ that he or she is a known or suspected terrorist." Kashem v. Barr , 941 F.3d 358, 365 (9th Cir. 2019).
Constitutional judgments, as Mr. Chief Justice Marshall recognized, are justified only out of the necessity of adjudicating rights in particular cases between the litigants brought before the Court[.] Broadrick v. Oklahoma , 413 U.S. 601, 610–611, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) (citations omitted); see United States v. Raines , 362 U.S. 17, 21, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960) ("Kindred to the[ ] rules [limiting federal courts to deciding only the cases and controversies properly before them] is the rule that one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional."); Kashem v. Barr , 941 F.3d 358, 375–376 (9th Cir. 2019) (quoting Broadrick ); see also United States v. Masciandaro , 638 F.3d 458, 474 (4th Cir. 2011). Respect for our circumscribed role is one reason "as-applied challenges are the basic building blocks of constitutional adjudication."
The Fifth Amendment's Due Process Clause "guarantees that ordinary people have fair notice of the conduct a statute proscribes" while "guard[ing] against arbitrary or discriminatory law enforcement." Sessions v. Dimaya , ––– U.S. ––––, 138 S. Ct. 1204, 1212, 200 L.Ed.2d 549 (2018) (quotations omitted); see also United States v. Hudson , 986 F.3d 1206, 1210 (9th Cir. 2021) ; Kashem v. Barr , 941 F.3d 358, 369 (9th Cir. 2019). The defendants cannot show that § 1325(a)(1) provides unfair notice or produces arbitrary enforcement.
Despite potential practical and factfinding difficulties, courts "are bound by the plain language of the statute." Kashem v. Barr , 941 F.3d 358, 391 (9th Cir. 2019). Congress' jurisdictional grant to the courts of appeals in § 46110 is not unique.
"Whether a provision is vague for lack of fair notice is an objective inquiry." Kashem v. Barr , 941 F.3d 358, 371 (9th Cir. 2019). The relevant inquiry is whether the law gives "a person of ordinary intelligence fair notice of what is prohibited," not whether the person being prosecuted or held liable under the statute actually received a warning that alerted him or her that their behavior was subject to the statute.
It may be as close to the heart of the individual as the choice of what he eats, or wears, or reads." Kent, 357 U.S. at 126, 78 S.Ct. 1113 ; see alsoKashem v. Barr , 941 F.3d 358, 378 (9th Cir. 2019) ("Plaintiffs undoubtedly have a strong liberty interest in domestic and international travel."); Mohamed v. Holder , No. 1:11-CV-50 AJT/MSN, 2015 WL 4394958, at *6 (E.D. Va. July 16, 2015) ; ("It must be recognized that a meaningful right of travel in today's world cannot be understood as cleanly divided between interstate and international travel ...").
The state court provided two reasons for denying Petitioner's claim, one of which was that she could not bring a facial vagueness challenge because her as-applied challenge failed. That is not contrary to clearly established law: "[A]s a general matter, a defendant who cannot sustain an as-applied vagueness challenge to a statute cannot be the one to make a facial vagueness challenge to the statute." Kashem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019). Contrary to Petitioner's assertions
To the extent that this cause of action challenges either the redress procedure available to individuals to challenge their placement on the No Fly List, or its procedures in placing individuals on the list, or for violations of plaintiff's procedural or substantive due process rights, this court lacks jurisdiction to hear such claims under 49 U.S.C. §46110(a). See Kashem v. Barr, 941 F.3d 358 (9th Cir. 2019) (under the current DHS TRIP procedure, §46110 grants the courts of appeals, rather than the district courts, exclusive jurisdiction over the plaintiff's substantive due process claims”); Magassa v. Mayorkas, 52 F.4th 1156, 1166-69 (9th Cir. 2022) (outlining precedent applying §46110 to “at least some facial constitutional challenges to TSA procedures”, including the “Security Directive that required airlines to check passenger names against the No-Fly List” and TSA's “policies and procedures implementing the No-Fly List” and holding that §46110 applied to plaintiff's procedural and substantive due process claims involving the TSA redress procedures at issue there
” Hoffman, 455 U.S. at 498; accord Kashem v. Barr, 941 F.3d 358, 370 (9th Cir. 2019) (construing Hoffman). Writing for a plurality of the Supreme Court in 2018, Justice Kagan ratified this view.