Muñoz And Abstraction
In my last post, I began discussing the recent Supreme Court decision in Department of State v. Muñoz. The court in that case considered whether Muñoz had a right under the Fifth Amendment’s Due Process Clause to be notified of the basis for the denial of her non-citizen husband’s visa. Normally, a non-citizen seeking entry has no due process rights that the federal government need respect, but the court had previously held in Kliendienst v. Mandel that the government does owe US citizens whose constitutional rights are derivatively violated by the denial of entry of an alien a “facially legitimate and bona fide reason” for the decision.
Back in 2015, a case presenting the same question as Muñoz came before the Supreme Court in Kerry v. Din, resulting in a triple split plurality decision. A naturalized American citizen’s Afghan husband was denied a visa based on “terrorist activities” and she sought an explanation for that conclusion. Justices Roberts and Thomas joined an opinion by Justice Scalia that applied the Glucksberg test to argue that there is no right deeply rooted in the nation’s history and tradition to bring your noncitizen spouse to the U.S. Consequently the plaintiff was not entitled to any due process, in their opinion.
Justice Kennedy, joined by Justice Alito, thought it was unnecessary to decide that question because even if the plaintiff was entitled to a facially legitimate and bona fide reason, the government satisfied that incredibly low bar simply by informing her that her husband’s visa was denied for terrorist activities under applicable law.
Justice Breyer, joined by Justices Ginsburg and Sotomayor dissented, arguing that the denial of a visa to her husband burdened Din’s right to marriage, requiring the government to disclose the basis of its decision under Mandel. They disagreed with Justice Kennedy that the bare assertion of “terrorist activities” sufficed. In their view, a facially legitimate and bona fide reason should include “the factual basis for the Government’s decision or a sufficiently specific statutory subsection that conveys effectively the same information.”
So, the upshot of Din was that 5 justices agreed on the outcome (Din was not entitled to more information about the denial of her husband’s visa), but they didn’t agree why. As I have previously written, triple split pluralities like this present a conundrum because, although they resolve the particular case, they don’t provide a clear rule for future cases because a majority of justices did not agree on the reason for the outcome. Under a case called Marks v. U.S., the opinion concurring in the judgment which garners the most votes is the governing rationale. In the case of Din, that would make Justice Scalia’s opinion, with three justices, the law.
But in practice during the Kennedy years, it was frequently Justice Kennedy’s concurrences that were treated as the most important opinions, because he was the swing vote and frequently wrote separately to say why he had voted a certain way. Din is a good example of this phenomenon, because his concurrence was subsequently cited in Trump v. Hawaii. There, relatives of foreigners denied visas under President Trump’s travel ban challenged the ban under the First Amendment, arguing it constituted an establishment of religion because it discriminated against Muslims. Chief Justice Roberts’ majority opinion relied on Justice Kennedy’s Din concurrence for the idea that a bare statutory citation without any additional details satisfied the Mandel requirement of a facially legitimate and bona fide reason, especially in the context of a national security justification.1
And in Muñoz, Justice Barrett continued to treat Justice Kennedy’s Din reasoning as the applicable rule when deciding visa denials that impact constitutional rights of citizens. Citing his concurrence, she explained that, absent extrinsic evidence of bad faith on the part of the consular officer, the court will not demand more than a bare statutory citation justifying the visa denial. Of course, Justice Barrett also agreed with Justice Scalia’s opinion that there is no constitutional right to immigrate one’s noncitizen spouse under Glucksberg.2
Justice Sotomayor, for her part, doubled down on the Breyer dissent in Din, arguing that the government owed Muñoz more than a bare statutory cite.3. In fact, however, Muñoz had already been informed during the course of the litigation that the consular officer had concluded that her husband was a member of MS-13 based on his tattoos. Thus, she already had her facially legitimate and bona fide reason, even under the slightly heightened standard advocated by Justice Breyer in Din.
Justice Sotomayor admitted as much, but she (and Justices Kagan and Jackson) nevertheless dissented, instead of concurring in the judgment as Justice Kennedy had done in Din, and as Justice Gorsuch did in this case. They disagreed with the majority’s claim that Muñoz’s fundamental rights were not implicated by the government’s initial failure to provide a justification for its decision.
The dispute between the majority and the dissent centered on the decisive element of the Glucksberg test that I have previously identified: how to characterize the fundamental right at issue. The conservative justices emphasize that a “careful description of the asserted fundamental liberty interest” is necessary. They reject the application of broadly defined rights, such as privacy, bodily autonomy, or as in this case, marriage. Instead they require that the right in question be specifically stated. Following this approach, Justice Barrett found no right to immigrate one’s noncitizen spouse that was deeply rooted in the nation’s history and tradition.
The liberal justices, conversely, apply broad categories of fundamental rights and then ask whether the particular facts of a given case constitue an application of one of those broad rights. In Muñoz, for example, Justice Sotomayor wrote that
The right to marriage is not so flimsy. The Government cannot banish a U.S. citizen’s spouse and give only a bare statutory citation as an excuse. By denying Muñoz the right to a factual basis for her husband’s exclusion, the majority departs from longstanding precedent and gravely undervalues the right to marriage in the immigration context.
She argued that majority made the same “fatal error” as it had in Dobbs, by too narrowly construing fundamental rights. According to her, overly narrow construction of these rights was inconsistent with prior cases like Loving v. Virginia and Obergefell v. Hodges. Indeed, under the majority’s approach in Muñoz, those cases would have gone the other way. There was no right to a miscegenated or gay marriage, strictly defined, that was deeply rooted in history or tradition at the times those decision were rendered. It was instead an expansive interpretation of the right to marriage that justified Loving and Obergefell.
Although the majority in Dobbs promised us that that decision was singular and not a portent of things to come, we see that in fact the conservative majority continues to wield the “careful description” prong of the Glucksberg analysis to fatally undermine fundamental rights previously taken for granted by the American people.
The majority nevertheless went on to look “beyond the facial neutrality of the order” because the government invited it to do so. Justice Roberts then concluded that President Trump’s proclamation met the deferential standards of rational basis review.
That is not necessarily inconsistent, because Kennedy’s Din reasoning would presumably apply in cases where rights besides the right to marriage are infringed, such as in Trump, which involved the Establishment Clause.
For what it’s worth, I think Breyer had the better of that argument in Din. In Mandel, the government initially relied on a statutory cite to a provision prohibiting entry of anarchists who advocated violent overthrow of the government, but that wasn’t sufficient. The court was satisfied when the government provided supplemental information that Mandel had previously violated the terms of his visa on an earlier visit.