Every term, I discover a hidden gem of a case. These decisions may not be widely known, but they have significant constitutional implications. In OT 2019, there was the case of Agency for Int’l Development v. Alliance for Open Society. In OT 2020, we had BP v. Baltimore. In OT 2022, the spotlight was on Mallory v. Norfolk Southern. And this term, the sleeper case is Department of State v. Munoz.
The case involved Sandra Munoz, a U.S. citizen, and her husband Luis Asencio-Cordero, an alien. Under immigration law, Asencio-Cordero had to return to El Salvador to apply for a spouse visa. However, his visa was denied based on suspicions of gang affiliations. As he was outside the U.S., he couldn’t challenge the decision in court, so his wife brought the case to the Ninth Circuit.
The Court’s 6-3 split decision, with Justice Barrett writing the majority opinion and Justice Sotomayor dissenting, clarified several key points regarding immigration law and the Constitution.
First, the Court reaffirmed the doctrine of consular nonreviewability, stating that federal courts cannot review consular officers’ visa denials. This decision clarified the impact of Trump v. Hawaii.
Second, the Court addressed the issue left open by Justice Kennedy in Kerry v. Din, ruling that a citizen does not have a fundamental right to bring their noncitizen spouse to the U.S.
Third, the Court applied the Glucksberg framework, analyzing the asserted fundamental liberty interest in the case. The Court concluded that Munoz did not demonstrate a deeply rooted historical tradition supporting her claim.
Overall, Justice Barrett’s opinion in Department of State v. Munoz clarified important aspects of the relationship between immigration law and constitutional rights.
In 1911, Gouverneur Morris observed that every society, from a nation to a club, has the right to determine the conditions for admitting new members. This view was echoed in the debate on the Virginia Resolutions in 1799-1800, which stated that all states have the power to decide on the admission of strangers as they see fit. The 1798 Act Concerning Aliens gave the President the authority to remove aliens deemed dangerous to the United States without exception for spouses or other family members.
The Court rejects any claim of substantive due process rights in this case. During the travel ban litigation, there was uncertainty about the validity of the United States ex rel. Knauff v. Shaughnessy (1950) precedent, which granted broad authority to the Attorney General to exclude aliens. The Court has since reaffirmed Knauff, emphasizing the government’s power to regulate alien entry.
The Court also interprets Kleindienst v. Mandel (1972) narrowly, clarifying that citizens do not have procedural due process rights in visa proceedings of others. This decision scales back on procedural due process rights, signaling a shift in immigration law.
Justice Sotomayor’s dissent focuses on cases like Loving, Obergefell, and Dobbs, arguing for the protection of fundamental rights. Justice Barrett dismisses these arguments as rhetoric, emphasizing the Court’s limited role in reviewing visa determinations.
Despite the dissent’s concerns, President Biden recently announced a new policy to simplify the process for alien spouses of U.S. citizens to obtain green cards. This policy would eliminate many of the bureaucratic hurdles currently in place for married couples seeking lawful permanent residency. The dissent’s detailed explanation of the challenges faced by spouses may need to be revisited in light of this new executive action.
Unfortunate timing in every aspect.
