Reading through an intriguing case like Kerry v. Din, which was argued last month before the U.S. Supreme Court, I can understand why nobody but lawyers would bother to try to understand exactly what these justices are splitting hairs over. But it’s a most intriguing argument.
Facts of the case: Husband, an Afghan citizen, filed for a visa to join his wife, a U.S. citizen, in the U.S., only the consulate refuses to issue a visa on terrorism grounds. Husband tried to prove he wasn’t a terrorist, but failed. Wife (Fauzia Din) filed to review the consular decision to obtain clarification why her husband was deemed to be a terrorist. Consulate refused to explain why (as per the statute). Suit follows.
Justice Breyer puts it succinctly:
I’m worried about the case where…an American citizen either must live separately from her spouse forever or must give up her right as an American to live in her native land.
Indeed. Millions of Americans married to non-citizens share such worries.
Two main issues here:
First, is the doctrine of “nonreviewability of consular decisions” (basically, courts don’t intrude into decisions about visas) an absolute bar to courts reviewing a case like this?
Second, can a wife assert a constitutional interest on behalf of her husband to get a clarification of a consular decision?
Seems odd that the “doctrine of nonreviewability” means executive actions at the consulate are subject to “extreme deference” (more deference even than the president’s reports about the state of war in Vietnam?). Why would consular decisions receive greater deference than other presidential decisions? Well, Congress said so. Maybe.
Yet Congress also issued extremely long instructions to make sure consular officials make their decisions based on Congress’s standards – AND NO OTHER STANDARDS (particularly with respect to the interpretation of “terrorism”).
The oral arguments featured a number of “ridiculous” hypotheticals (e.g., what if the consular officials are bigots, or think husbands shouldn’t live with their wives, or whatever). I’m not sure I understand fully, but it seems there’s a slightly different sort of problem: how could Congress “know” that the law they wrote had actually been implemented without some modicum of oversight?
Say “terrorism exemption” portion of the relevant statute reads
1. Consular decisions are not subject to review by any other agency or judicial authority.
2. The reasons for consular decisions need not be reported to anyone.
3. Consular officials may not issue visas to terrorists. Terrorists, for purposes of this statute, are:
(a) People who take up arms against or threaten the U.S.; or
(b) People who desecrate the American flag.
Say G.I. Joe Ali applies for a visa, is married to an American wife. Say G.I. Joe Ali is a legendary hero who has fought to protect American lives (e.g., “Lone Survivor” – such folks may exist). G.I. Joe applies for a visa, and he comes in for his interview wearing his favorite red, white, and blue jeans. His application is denied, and he is told it’s because of the “terrorism exemption.” A consular official regarded those jeans as a “desecration of the flag.”
G.I. Joe could assert his deep love for America. He could get every soldier to testify on his behalf, obtaining dozens of statements from the soldiers he saved. He could go out and save a hundred more soldier’s lives. It would make no difference – he failed on account of the “flag desecration” element of the law and would never get his visa.
G.I. Joe wouldn’t even know that he’d “desecrated the flag” – in his mind, these are a favorite badge of support for America!
Poor Ali! But ignorance is no defense. What is interesting is that Congress wouldn’t know it either. They’d ask for a report, and be told “failed the terrorism exemption.” They’d never know that their code – which was drafted to do something very precise – had been interpreted to mean that “red/white/blue jeans” = “flag desecration.” If they did know, then they could amend the code to clarify what they meant by “flag desecration.” But nope – it’s nonreviewable – Congress will never ever ever know how it’s law was implemented, but only that “the terrorism exemption” applied.
Having read through 8 U.S.C. 1182 (as provided by the government in its brief) – I’m reasonably sure there’s no “flag desecration” element buried there – this is just one more ridiculous hypothetical (and the justices already offered a fair number of ’em).
But the definition of “terrorist” that actually is in the statute is extensive. Congress cared deeply that THIS DEFINITION AND NO OTHER DEFINITION be applied by consular officials precisely as it is written. How will they ever know for sure that consular officials have done that?
According to the government’s position, the “doctrine of nonreviewability” would seem to mean, Congress just has to trust these consular officials. Odd. The plenary power of Congress to regulate immigration would prevent them from knowing what their statutes were actually doing in the real world – they’d have to just trust the executive.
The U.S. consular officials I’ve known have been excellent, hardworking government officials. But at least a few congresspeople don’t trust government officials. Why would these particular officials receive so much more trust than, say, the president? It’s remarkable.
My expectation: 4-1-4 ruling with Kennedy trying to thread the needle, ultimately ruling the wife cannot prevail in this case for some narrow reason (perhaps overruling or reconstruing part of Mandel in the process) – but also acknowledging that there’s a problem with a completely unchecked doctrine of consular nonreviewability (a problem left for someone else to resolve some day) while chastising mechanical reliance on databases (if consular officials are fallible mortals, are the data entry clerks who populate the content of those databases somehow MORE reliable simply because they typed on a machine?). The ultimate ambiguity is left to Congress to resolve (when they get around to passing some form of immigration reform).
Curious what others think. I suspect at least 73 law professors and a few thousand lawyers disagree.
Edit history: a previous version of this post offered an even more ridiculous hypothetical, before it dawned on me that people, by and large, hate hypothetical questions, and a ridiculous one is easier to dismiss unreflectively.