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 Loving, Obergefell, 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.

Comments

[ReaderY]

Completely agree this is an important sleeper case that got slipped totally under the radar.

My read is that Justice Barrett is setting up to overrule Obergefell. The case holds that the right to marry protected by the Due Process clause is that right that’s deeply rooted in this nation’s history and tradition. Since US immigration law historically deported alien spouses of US citizens who were residing here illegally, the “right to marry” does not include the right to live in the US with a non-citizen spouse.

The case is all but setting up for the time the court says, a la Bowers v. Hardwick, that gay marriage is not deeply rooted in this nation’s history and tradition.

A remarkable development is that Bowers v. Hardwick recognized two prongs. “Implicit in the concept of ordered liberty” was a distinct prong. But Justice Barrett’s opinion appears to have dropped it entirely.

A second interesting development is that Justice Gorsuch signed on in full. Justice O’Conner, who signed on to Bowers v. Hardwick wrote a concurrence to Lawrence v. Texas relying on the Equal Protection Clause but not the Due Process Clause. I wonder if Justice Gorsuch would go that route. After all, this is the approach that Justice Potter Stuart took in his concurrence to Loving v. Virginia. I imagine the Court’s liberals would take any clause they could get.

[ReaderY]

Of course, the minimum interpretation in this case is that so far as the constitution is concerned, the United States has plenary authority to admit or exclude aliens as it pleases - complete freedom of choice - this right is independent of all restrictions that might be valid if applied to citizens, for example the United States can exclude aliens based on their race or religion (Trump v. Hawaii) or national origin. And no citizen or state has a right to interfere.

[Dr. Ed 2]

"Barrett is setting up to overrule Obergefell"

What would that look like? Would it even be logistically possible now that there are couples in gay marriages dating back more than a decade?

I'm not getting into good or bad idea, I'm asking if it would even be possible and what would be the logistics of it? Or would the existing gay marriages be "grandfathered"?

[Frank Drackman]

Reminds me of the old Curley Howard line "Are you Happy or Married? Ruff! Ruff! Woo Woo Woo!"

Frank

[Frank Drackman]

Dammit, maybe I've got Sleepy Joe's disease, it was Moe Howard, not Curley, and the line was "are you married or happy?" (he was doing Census work) Now Spread out!

Frank

[The Margrave of Azilia]

"My read is that Justice Barrett is setting up to overrule Obergefell."

That would be throwing out the baby with the bathwater.

If the right to marry isn't in the Ninth Amendment, what would be?

That doesn't mean same-sex relationships must be called marriage with marriage-like rights.

[Brett Bellmore]

Precisely. The right to marry probably IS a classic 9th amendment right, or would be if the judiciary weren't determined to pretend that amendments 9&10 don't exist. But Obergefell has to do with a right to do something that didn't fall under the definition of "marry" until just a few years prior to Obergefell, "member of the opposite sex" being an implicit part of the definition.

But constitutions, being written in words, have no defense against a judicial decision to start redefining words.

Anyway, I REALLY doubt that there's more than one or possibly two votes on the Court to reverse Obergefell. Thomas, of course. Reversing it would require a campaign of decades, comparable to the fight to overturn Roe. And the first step in that would have to be retaking the law schools; Where would you even find the justices willing to consider such a move, when they'd be graduating from today's politicized institutions?

Has the right even woke up yet to the judicial time bomb they're going to face in another decade, when the supply of potential conservative judges dries up due to the purge of conservative faculty that's just finishing up now?

[Martinned2]

That's a classic example of how you can reach any outcome you like by defining the right more broadly or more narrowly. Before Loving, there was no right of interracial marriage. But would you say, today, that Loving reached the right result only because of the equal protection clause? That it had nothing to do with the fundamental right to marry? Or is the proper scope of the right simply a right of consenting adults to marry?

[Brett Bellmore]

"Before Loving, there was no right of interracial marriage."

On the contrary. Though people forget, anti-miscegenation laws were dropping like tenpins right after the ratification of the 14th amendment, as the lower courts ruled that it prohibited them, and legislatures just up and repealed them. This all stopped with Pace v Alabama, which was part and parcel of the Court's Slaughterhouse drive to moot the 14th amendment.

"Arkansas, Florida, Louisiana, Mississippi, Texas, South Carolina, and Alabama legalized interracial marriage for some years during the Reconstruction period. Anti-miscegenation laws rested unenforced, were overturned by courts or repealed by the state government (in Arkansas[23] and Louisiana[24]). However, after white Democrats took power in the South during "Redemption", anti-miscegenation laws were re-enacted and once more enforced,"

It really is a shame that people forget that the civil rights revolution actually got its start right after the Civil war, was sabotaged by the Court, and that the later civil rights movement was a drive to restore what the Court had earlier stolen.

[Brett Bellmore]

This is rather distinctively different from SSM. Legalizing inter-racial marriage was a predicted consequence of the 14th amendment, much as legalizing SSM was a predicted consequence of the ERA, but the difference is that the 14th amendment was actually ratified, while the ERA was defeated.

It's just that the courts decided not to let the defeat of the ERA matter...

[Martinned2]

The ERA was defeated because it was redundant, given that the 14th amendment already protects the rights of women.

[ReaderY]

No, it was defeated because red state legislatures didn’t want its consequences, such as legalizing SSM. Blue states supported it.

You may or may not like it. But you can’t deny historical facts.

[Sarcastr0]

It had a lot of reasons why it wasn't adopted by enough states, including the argument that it would be redundant.

SSM was one of the out-there theories Phyllis Schlafly put forward and she put forward a lot; you'd need a lot more work to show that was load-bearing.

[JoeFromtheBronx]

The ERA has open-ended language that goes beyond what the 14A says.

I understand not knowing this since even members of Congress who promote it blandly ignore the text. They treat it as a bland equal protection measure, making one wonder why it matters.

It at the very least would treat sex like race, using strict scrutiny. The Supreme Court never went that far, especially in the mid-1970s (they used intermediate scrutiny, which later obtained some more bite).

The final states in the 1970s were worried about that. The ERA not being ratified allowed sex equality to be promoted on a slower schedule.

[JoeFromtheBronx]

Some rulings in the Reconstruction South, which you otherwise find unjust because of the force involved in upholding it, is not exactly like "ten pins."

There was a wide understanding, including from leading framers of the 14A, that the amendment was not going to cover "social rights" like marriage. John Marshall Harlan, the great dissenter in Plessy etc., went along with that rule.

Yes, there was a minority view that went further. But, if that is how we are going to define original understanding, it's going to lead to creative places.

[David Nieporent]

Reversing it would require a campaign of decades, comparable to the fight to overturn Roe. And the first step in that would have to be retaking the law schools;

No, the first step in that would be finding people who actually want to overrule Obergefell. Not to sound like Kirkland, but those really are dead enders. Roe was deeply unpopular with a large segment of the country from the moment it was decided, and the movement to overturn it began immediately and was intense. (There was a big rally in DC every year on the anniversary of the decision to denounce it.) There is no comparable anti-gay marriage movement at this point. The legality of gay marriage is popular. 70% of Americans are in favor, and even 50% of Republicans are.

[Krychek_2]

The problem, though, is that there is no principled reason to overturn Roe but not Obergefell, or, for that matter, Griswold. And I'm not sure it would be all that difficult. All that has to happen is for one state to announce that it will no longer allow gay marriage, or permit birth control, and back up to the court the issue goes. So my question to the (badly misnamed) originalists is this: Is there an outer limit on how much the states can tyrannize people with lifestyles the state doesn't like? And if so, what is that limit, and how do you measure it?

That's basically what has just happened with Louisiana and the Ten Commandments. Louisiana is betting the new conservative Supreme Court will blow up decades of First Amendment law and allow it to establish the Judeo Christian religion. It remains to be seen if it is right.

[Sarcastr0]

While I do think that Dobbs as written leaves the door open to a lot of other sweeping judicial reversals, the lack of a principled reason not to do something doesn't mean it's gonna happen.

[Noscitur a sociis]

All that has to happen is for one state to announce that it will no longer allow gay marriage, or permit birth control,

Which state do you think is going to do that?

[David Nieporent]

Well, Mississippi is always a safe guess!

But, no, I don't think that's going to happen. A specific form of birth control might be banned in some red states, but not birth control in general.

[Krychek_2]

David, I hope you're right.

[David Nieporent]

My read is that Justice Barrett is setting up to overrule Obergefell.

Justice Barrett is not setting up to overrule Obergefell. Nobody is overruling Obergefell.

The case is all but setting up for the time the court says, a la Bowers v. Hardwick, that gay marriage is not deeply rooted in this nation’s history and tradition.

As with Loving, Obergefell is an Equal Protection case. The "deeply rooted" test is for unenumerated rights under substantive due process, not for equal protection.

[ReaderY]

If you read my comment you’ll see I addressed that in the last paragraph. Obergefell, like Lawrence and like Loving, was on its face a Due Process case. Potter Stuart’s opinion in Loving relying solely on the Equal Protection Clause was a concurrence, like O’Conner’s opinion in Lawrence.

Also, I made an error. Justice Gorsuch did not sign on in full. He wrote seperafely to indicate he thought the case should have been dismissed as moot because DHS had already provided the information the plaintiff was seeking, and hence should not have reached the constitutional issues.

[David Nieporent]

You are mistaken. If you read the majority opinion you would see that Loving was in fact not a SDP case, but an equal protection case. At the very end of the opinion, the majority threw in two brief paragraphs saying, "Oh yeah, it violates SDP also." But the bulk of the opinion was equal protection.

Obergefell spent more time on SDP than Loving did, but it explicitly grounded gay marriage in EP as well.

Which means entirely eliminating the concept of SDP — which nobody except Thomas is proposing to do — would still leave both rulings fully in effect.

[MaddogEngineer]

Obergefell should be overturned, because it legal rationale was absurd and extra-constitutional. But it certainly isn't going anywhere.

There is no way anyone in 1868 would have thought the public meaning of the text of that amendment could have possibly applied to marriage as also understood in 1868, because the possibility of procreation was fundamental to marriage, both legally and culturally. Marriage was never about marrying someone you love. That's an ahistorical retcon by Kennedy.

The constitutional question is separate from our quickly evolved political reality. Under our constitutional federalism, it's not up to federal courts to decide such things.

[David Nieporent]

in 1868, because the possibility of procreation was fundamental to marriage, both legally and culturally. Marriage was never about marrying someone you love.

I wasn't around back then, but in various period pieces I've read over the years, elderly widows were always getting married.

[username123]

Footnote 3 of Sotomayor's opinion says that she would vacate and remand rather than reversing. Her dissent in Thornell v. Jones said the same thing.

[The Margrave of Azilia]

Oh, for crying out loud, the Alien Friends Act was the controversial counterpart to the Sedition Act, allowing the President to arbitrarily banish citizens of countries at peace with the United States. That law expired around 1800 IIRC.

The Alien *Enemies* Act allows the President to kick out citizens of enemy countries, or countries threatening to invade. This is law to this day and hasn't been very controversial as laws go. The Republican opposition agreed with it in 1798 even while making its appeal to the court of history against the Sedition Act and the Alien Friend Act.

[Frank Drackman]

it's confusing that the "Republicans" of 1798 eventually became todays DemoKKKrats, while the Repubiclowns of today didn't start for another 70 years.

[Brett Bellmore]

It was amazing how quickly after ratification of the Constitution the Federalists set out to prove that the Anti-Federalists had been right about them, isn't it?

[Frank Drackman]

Army Gas passer I knew married an Italian chick when he was stationed in Germany, also a Physician, man, INS gave them more shit, seems she was a bit "out of his league" in the looks department, (have you seen most Male Docs? $$$$ is the ultimate Aphrodisiac) OK, and she was doing a fellowship on the opposite coast, so they didn't fuck much, oh wow, I just described 90% of medical resident marriages. This was pre 9-11, I remember him asking Crocket and Tubbs one time "Don't you have any real Illegal Aliens to harass" and a few months later they did.

Frank

[Martinned2]

If you take a step back, this is of course nuts. Of course you have a due process interest in being able to spend time with your spouse (and children) in the country of your residence/citizenship. As noted, that doesn't mean the US has to leave in all spouses. But the notion that the government can refuse entry to whomever they like without any judicial oversight whatsoever is nuts.

[Martinned2]

Not quite the same, but it's always worth quoting the ECJ's Ruiz Zambrano judgment, on a situation where the minor child is a citizen but their parents aren't:

42. In those circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union (see, to that effect, Rottmann, paragraph 42).

43. A refusal to grant a right of residence to a third country national with dependent minor children in the Member State where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect.

44. It must be assumed that such a refusal would lead to a situation where those children, citizens of the Union, would have to leave the territory of the Union in order to accompany their parents. Similarly, if a work permit were not granted to such a person, he would risk not having sufficient resources to provide for himself and his family, which would also result in the children, citizens of the Union, having to leave the territory of the Union. In those circumstances, those citizens of the Union would, in fact, be unable to exercise the substance of the rights conferred on them by virtue of their status as citizens of the Union.

45. Accordingly, the answer to the questions referred is that Article 20 TFEU is to be interpreted as meaning that it precludes a Member State from refusing a third country national upon whom his minor children, who are European Union citizens, are dependent, a right of residence in the Member State of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen.

[David Nieporent]

So the EU actually does have "anchor babies," unlike the U.S.

[Martinned2]

No, because most EU member states have ius sanguinis, not ius solis. Being born in the EU isn't normally enough to get citizenship.

[David Nieporent]

Ok. But then who would fall into the category protected by the decision you quote? Where are there citizen children w/o citizen parents?

[Martinned2]

Sometimes Ruiz Zambrano cases come up because the child got EU citizenship from an EU parent who is deceased, or (otherwise) unable to take care of the child.

In Ruiz Zambrano itself, it was even more of a fluke:

On 1 September 2003, Mr Ruiz Zambrano’s wife gave birth to a second child, Diego, who acquired Belgian nationality pursuant to Article 10(1) of the Belgian Nationality Code, since Columbian law does not recognise Colombian nationality for children born outside the territory of Colombia where the parents do not take specific steps to have them so recognised.

So basically Belgian law (and, I'd imagine, many other EU Member States' law) applies ius solis where this is necessary to avoid a child being stateless. But you'd think that's pretty rare.

[John F. Carr]

Most EU members are parties to the 1961 Convention on the Reduction of Statelessness.

[Mr. Bumble]

No more nuts than refusing entry to your home of crazy Uncle Martin for a holiday dinner.

[Martinned2]

If you shared your house with a tenant, and forbade them from letting their spouse into the house, that would indeed be quite nuts. But more generally I don't think the country = house analogy is very helpful for anything.

[KenveeB]

If I rented to someone and had a condition that they were the only resident and were not permitted to have overnight guests for longer than X days, then I don't really care if their overnight guest is their spouse or not. I rented to one person. They don't get to change that to two just because they want to.

[Martinned2]

Sure, but in this analogy the tenant is another citizen, i.e. someone who owns the house as much as you do.

[Please, Daivd, Seek Help]

"Non-citizen" is first attested in 1850 through use in the U.S. Senate, so I think it's a bit of a stretch to call it a neologism. I think you have two options: (1) stop using snarky asides to beat up on the meal old liberals who are so mean to you or (2) actually try to make sure you're right for once, even by accident.

[ReaderY]

The concept of a US national didn’t come into being until the US began acquiring territories it regarded as colonies with no intention of eventually making states, and whose existing inhabitants it didn’t want to make citizens. That first happened after the Spanish-Anerican war.

[David Nieporent]

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),

Prof. Blackman is accurately quoting the case, but Justice Barrett is not accurately quoting James Madison. Here's what Madison actually wrote: "One argument offered in justification of this power exercised over aliens is, that the admission of them into the country being of favor, not of right, the favor is at all times revocable." In other words, Madison wasn't saying that this was his view of immigration law; he was saying, "One argument people make in favor of the Alien Act is this…"

[Purple Martin]

Almost. As I’ve always understood it, Justice Barret reads Madison correctly. Madison states “…the admission of them into the country being of favor, not of right,” is granted, and further identifies one argument other people make: such a favor may always be withdrawn (which may also be Madison’s further belief, but he was careful not to confirm it either way).

Of course, the one thing I may share with Justice Barrett is that the understanding of either of us may occasionally turn out to be mistaken, but your full quote doesn’t doesn’t get there quite yet.

[ReaderY]

The case was really 5-3-1, with Justice Gorsuch writing separately to say the case should have been dismissed as moot without reaching the constitutional questions.

I made the same error myself, so I can’t be too hard on Professor Blackman this time.

[David Nieporent]

Gorsuch concurred in the judgment.

[John F. Carr]

I would use "alien" if the spouse is in the United States and "noncitizen" otherwise.

[JoeFromtheBronx]

There has been a trend not to say "alien" in Supreme Court opinions. Alito still talks about "aliens."

The majority went further than necessary in this case -- Gorsuch said as much. How much they said remains to be seen. We have to see what future courts do with this ruling.

The minority is inside the house. So, if they are concerned it will go further, I respect that.

"The good old days where the Court was the only legitimate branch of government"

Oh? I would think the snotty thing to say was that Sotomayor thought the Obama Administration was legitimate, the Trump not.

[Ann Block]

Here to respond to the author's completely inaccurate comment stating: "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 statement is far from accurate and demonstrates an enormous lack of knowledge of U.S. immigration law. (This commenter has been an immigration attorney for over 35 years and has represented numerous clients in consular processing cases abroad as well as adjustment of status cases within the U.S. -- both processes related to green cards for spouses of U.S. citizens as well as others.) The new Biden policy would simply allow SOME spouses of U.S. citizens, who were already married before the policy was announced, and have been here in the U.S. at least 10 years, to apply for a temporary status under the policy. If granted that temporary status, it would allow them to then APPLY for a green card to DHS from within the U.S., rather than depart for consular processing abroad. DHS (via USCIS) can still deny both these temporary status and subsequent green card applications (and often does), including for the exact same reason the consulates can do so abroad. This type of temporary status policy is already afforded to the spouses, parents and children of military veterans and those presently serving.

The major difference that will be the result of the new Biden policy is actual fairness in decision making as to who is allowed to become a lawful permanent resident of this country and who is not. As this decision makes clear, there is no judicial or any other real review of consular decisions, meaning that a single consular officer can decide, with no evidentiary basis at all, that an applicant for a green card is ineligible. In the Munoz case, it was because the officer apparently did not like the applicant's tattoos -- though many, even most, people in post-boomer generations have at least one, if not numerous tattoos, and the consular officer could make no clear and evidence-based connection of any of the applicant's tattoos with any gang whatsoever, though that officer did make such a connection anyway. Apparently it was the applicant's tattoo with Catholic imagery, specifically that of a Catholic saint (the Lady of Guadalupe) that was a concern -- since along with an enormous number of Latinos in the U.S. and abroad, some gang members also sport a tattoo of this Catholic saint.

If Ms. Munoz' spouse had been able to apply for a green card here in the U.S., a DHS officer would be subject to review by the immigration courts, and ultimately by the U.S. judiciary. Witnesses and experts could be called to testify. Her spouse's credibility could be fairly tested as to his purported "gang membership" and why he has the particular tattoos that he does. Her spouse could even still have been deported, and spouses of U.S. citizens often are in fact found deportable and deported, after such reviews by the courts. But there is no "automatic ticket" and no elimination of "hoops" -- under the new Biden policy, as claimed by this article's author. That is simply untrue. The policy would simply, for a very limited number of spouses of U.S. citizens, allow them to avoid the total lack of any review of the decisions of consular officers -- decisions often made without even a bare modicum of an evidentiary basis and often with a significant cultural or racial bias.