The Volokh Conspiracy

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Department of State v. Munoz: The Sleeper ConLaw Case of the Term

Justice Barrett's majority clarifies Glucksberg, Mandel, Din, and Knauff, but Justice Sotomayor's dissent really wants to talk about Loving, Obergefell, and Dobbs.


Every term, I find at least one sleeper case. These decisions were not on the public's radar, but reached some fairly significant constitutional holdings. In OT 2019, there was Agency for Int'l Development v. Alliance for Open Society. In OT 2020, there was BP v. Baltimore. In OT 2022, there was Mallory v. Norfolk Southern. This term, the sleeper case is Department of State v. Munoz.

Sandra Munoz, a U.S. citizen, married Luis Asencio-Cordero, an alien. (No, I will not use the neologism "non-citizen.") Under immigration law, the husband had to return to his home country, El Salvador, to apply for a spouse visa. However, the consular officer denied his visa. Eventually, the government cited the statute indicating that an alien is inadmissible due to some "unlawful activity." Long story short, the government suspected that Asencio-Cordero had some connections with the MS-13 gang. Since the husband was no longer in the United States, he had no mechanism to challenge the denial of his visa in court. However, his wife, who was a U.S. citizen, brought suit in the Ninth Circuit.

The Court split 6-3, along right-left lines. Justice Barrett wrote the majority opinion and Justice Sotomayor wrote the dissent. But to be clear, none of the Justices held that the husband was entitled to a visa. Indeed, I think all nine Justices agreed that the rationale given to Munoz–that her husband was suspected of having gang affiliations–afforded her all the process she was due. All nine Justices would have reversed the Ninth Circuit. I agree with Ed Whelan that Sotomayor's opinion should have been labelled "concurring in part and dissenting in part," or "concurring in the judgment," or something to that effect. But Sotomayor's "dissenting" appellation muddles the bottom line.

Justice Barrett's majority opinion performs an important service by cleaning up several loose ends in the relationship between immigration law and the Constitution.

First, the Court explained that under the doctrine of consular nonreviewability, "The Immigration and Nationality Act (INA) does not authorize judicial review of a consular officer's denial of a visa; thus, as a rule, the federal courts cannot review those decisions." Trump v. Hawaii is not to the contrary. Barrett wrote that in Trump, the Court "assume[d] without deciding that [the] plaintiffs' statutory claims [were] reviewable." I was always very dubious of that holding. When Justice Kennedy was the 5th vote, that assumption was necessary. But I doubt it is going forward. Should Trump prevail, his Justice Department would rely on non-reviewability to defeat a host of immigration-related challenges.

Second, the Court resolved another issue that Justice Kennedy left open in Kerry v. Din (2015):

In Din, this Court considered but did not resolve the question. A plurality concluded that a citizen does not have a fundamental right to bring her noncitizen spouse to the United States. 576 U. S., at 96. Two Justices chose not to reach the issue, explaining that even if the right existed, the statutory citation provided by the Executive qualified as a facially legitimate and bona fide reason. Id., at 105 (opinion of Kennedy, J.). Since Din, the existence of the right has continued to divide the Circuits. Today, we resolve the open question. Like the Din plurality, we hold that a citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.

During the travel ban litigation, there was extensive debate about what the holding of Din was. Lower courts relied almost exclusively on Justice Kennedy's concurrence. But going forward, this issue has been neatly resolved.

Third, the Court applied Glucksberg for (I think) the first time since Dobbs. The Court more-or-less skipped over the first element, and did not actually decide if Munoz describes a liberty interest with sufficient specificity.

We start with a "careful description of the asserted fundamental liberty interest." Id., at 721 (internal quotation marks omitted). Muñoz invokes the "fundamental right of marriage," but the State Department does not deny that Muñoz (who is already married) has a fundamental right to marriage. Muñoz claims something distinct: the right to reside with her noncitizen spouse in the United States. That involves more than marriage and more than spousal cohabitation—it includes the right to have her noncitizen husband enter (and remain in) the United States. It is difficult to pin down the nature of the right Muñoz claims.

But (shocker) the Court focuses extensively on whether there is a "tradition" of such a liberty interest. Everything is about "tradition" nowadays. (I still haven't read Rahimi; I have been putting it off for as long as I can.) And the answer is overwhelmingly no.

This right would be in a category of one: a substantive due process right that gets only procedural due process protection. Ibid. We need not decide whether such a category exists, because Muñoz cannot clear the second step of Glucksberg's test: demonstrating that the right to bring a noncitizen spouse to the United States is "'deeply rooted in this Nation's history and tradition.'" 521 U. S., at 721. On the contrary, the through line of history is recognition of the Government's sovereign authority to set the terms governing the admission and exclusion of noncitizens. And Muñoz points to no subsidiary tradition that curbs this authority in the case of noncitizen spouses.

Indeed, the Court relies on the Alien Friends Act, which is part of the Alien and Sedition Act. While the Sedition Act was overruled in the "court of history"–or at least Justice Brennan told us in New York Times v. Sullivan–the Alien Act remains a valid basis for the federal immigration power.

From the beginning, the admission of noncitizens into the country was characterized as "of favor [and] not of right." J. Madison, Report of 1800 (Jan. 7, 1800), in 17 Papers of James Madison 319 (D. Mattern, J. Stagg, J. Cross, & S. Perdue eds. 1991) (emphasis added); see also 2 Records of the Federal Convention of 1787, p. 238 (M. Farrand ed. 1911) (recounting Gouverneur Morris's observation that "every Society from a great nation down to a club ha[s] the right of declaring the conditions on which new members should be admitted"); Debate on Virginia Resolutions, in The Virginia Report of 1799–1800, p. 31 (1850) ("[B]y the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient"). Consistent with this view, the 1798 Act Concerning Aliens gave the President complete discretion to remove "all such aliens as he shall judge dangerous to the peace and safety of the United States." 1 Stat. 571 (emphasis deleted). The Act made no exception for spouses—or, for that matter, other family members.

The Court rejects any purported substantive due process right at issue here.

Fifth, during the travel ban litigation, there was some doubt whether United States ex rel. Knauff v. Shaughnessy (1950) remained good law. This law gave virtually boundless authority to the Attorney General to exclude aliens. Courts held that Knauff was inconsistent with Justice Kennedy's concurrence in Din, and favored the latter. But the Roberts Court has forcefully reaffirmed Knauff:

Knauff thus reaffirmed the longstanding principle "that the United States can, as a matter of public policy . . . forbid aliens or classes of aliens from coming within their borders," and "[n]o limits can be put by the courts upon" that power. . . . Moreover, Knauff remains good law that we have repeatedly reaffirmed. Dept. of Homeland Security v. Thuraissigiam, 591 U. S. 103, 138–139 (2020).

Sixth, the Court reads Kleindienst v. Mandel (1972) very narrowly. This Burger Court decision fashioned some sort of procedural due process right for American citizens to challenge the denial of an alien's entry where the citizen's First Amendment right was violated. During the travel ban litigation, I was certain this precedent had been abrogated by later decisions scaling back procedural due process. In Munoz, the Court does that scaling back:

Lest there be any doubt, Mandel does not hold that citizens have procedural due process rights in the visa proceedings of others. The Ninth Circuit seems to have read Mandel that way, but that is a misreading. . . . The Court expressly declined to address whether a constitutional challenge would "be available for attacking [an] exercise of discretion for which no justification whatsoever is advanced." Ibid. Thus, the "facially legitimate and bona fide reason" in Mandel was the justification for avoiding a difficult question of statutory interpretation; it had nothing to do with procedural due process. Indeed, a procedural due process claim was not even before the Court. . . .

Whatever else it may stand for, Mandel does not hold that a citizen's independent constitutional right (say, a free speech claim) gives that citizen a procedural due process right to a "facially legitimate and bona fide reason" for why someone else's visa was denied.

What does Mandel even stand for at this point? Not much. I'm sure the immigration professoriate will lament the stealth overruling of Mandel. So be it. That precedent lived long past its prime.

Justice Sotomayor's dissent makes this case all about LovingObergefell, and Dobbs. Justice Barrett is not amused, and rejects these arguments as "rhetoric":

The dissent never addresses the actual issue in this case, which is whether the Judiciary has any authority to review visa determinations made by the State Department. Instead, the dissent chooses the rhetorically easier path of charging the Court with endangering the fundamental right to marriage. See post, at 11–14. To be clear: Today's decision does not remotely call into question any precedent of this Court, including those protecting marriage as a fundamental right.

Still, the rhetorical force is strong:

This Court has never held that a married couple's ability to move their home elsewhere removes the burden on their constitutional rights. It did not tell Richard and Mildred Loving to stay in the District of Columbia or James Obergefell and John Arthur to stay in Maryland. It upheld their ability to exercise their right tomarriage wherever they sought to make their home.

Justice Sotomayor also calls back to the pre-Trump Court, announcing that both Obergefell and Din were decided about a "decade ago." The good old days where the Court was the only legitimate branch of government. Remember when Justice Kennedy was the swing vote?

I member.

The timing of this dissent, however, is somewhat inauspicious. Earlier last week, President Biden announced a new policy that would make it easier for alien spouses of U.S. citizens to obtain a green card. In short, these aliens would no longer have to return to their home county and apply for a visa abroad. Justice Sotomayor's dissent explains, in painstaking details, all of the hoops that spouses have to jump through.

Marriage is not an automatic ticket to a green card. A married citizen-noncitizen couple must jump through a series of administrative hoops to apply for the lawful permanent residency that marriage can confer. Noncitizen spouses coming from abroad must apply for a visa to enter the United States. In certain cases, however, the law requires even couples who meet and marry in the UnitedStates to send the noncitizen spouse back to his country of origin to do the same thing. In doing so, the couple must take an enormous risk to pursue the stability of lawful immigration status: the risk that when the noncitizen spouse tries to reenter the United States, he will face unexpected exile.

The Biden policy would effectively make marriage "an automatic ticket to a green card." Indeed, a couple could get married immediately to take advantage of that automatic ticket. The Biden executive action, which still has not been published in the federal register, would eliminate many of these hoops. I suspect the policy is being rewritten as we speak to account for the new decision.

This quoted paragraph will be quoted ad infinitum in the inevitable litigation. I wonder if Justice Sotomayor considered dropping it after the Biden policy was announced? I suppose that would have been a bit awkward. Bad timing all around.