Monday, June 22, 2015
Here is the next installment in the symposium on Kerry v. Din.
Due Process and Plenary Power by Matthew J. Lindsay
The three opinions issued in Kerry v. Din collectively demonstrate both the waning importance and the continued vitality of the so-called plenary power doctrine, under which Congress and the President govern immigration largely outside the purview of judicially enforceable constitutional constraints.
First, let’s consider the good news (at least for those of us who would like to see immigration law restored to the constitutional mainstream). In one respect, we can read Din to suggest the diminishing salience of the plenary power doctrine. As Dean Kevin Johnson explains in a forthcoming article, for the past several Terms the Court has approached immigration-related lawmaking and enforcement through “generally applicable principles of statutory interpretation, rules of deference to administrative agencies, [a strong presumption against] retroactive application of changes in the law, [and conventional] federal preemption,” while virtually never invoking plenary federal power. Further, in myriad instances over the past three decades, mainstream constitutional norms of due process and equal protection have often animated courts’ approach to immigration cases, often by way of statutory construction, even as the plenary power doctrine ostensibly bars such influence. (Hiroshi Motomura has called this the operation of “phantom constitutional norms.”) For a high-profile, relatively recent example, consider Zadvydas v. Davis (2001), in which the Court read a six-month limitation into a statute that appeared to authorize the indefinite detention of certain noncitizens following a final order of removal, in order to avoid the “serious constitutional difficulty” raised by the prospect of perpetual confinement.
Din reflects this broadly promising trend in at least two respects. First, as Dean Johnson notes in his overview of the decision, both Justice Breyer’s dissent and Justice Kennedy’s concurrence reject “consular absolutism”—the notion that there is no right to judicial review when a consular officer rejects a visa application. Justice Breyer concludes and Justice Kennedy “assum[es]” that Din had a constitutionally protected liberty interest in the government’s consideration of her husband’s visa application, and that she was thus entitled to due process. Although the process that was actually due Din turns out to be very little—the government satisfied it by merely notifying Din’s husband that his visa was denied under the immigration statute’s terrorism bar—Kennedy’s opinion (which represents the fifth and sixth votes against consular absolutism) does mean that a court will review the denial of a visa to the noncitizen spouse of a U.S. citizen to ensure that the consul provided a “facially legitimate and bona fide reason” for the rejection. For reasons described more fully below (and ably analyzed by Geoffrey Heeren), that’s likely cold comfort for citizens like Din and noncitizen spouses like Berashk; but it is a little bit better than nothing, and it’s arguably consistent with the modern Court’s modest expansion of procedural due process rights in cases like Mandel and Landon v. Plasencia (1982).
Second, and in my view more notably, Justice Breyer’s dissent upholds a long tradition of vigorous judicial protest against the Court’s reflexive deference in immigration matters. That history began with Justice Field and Brewer’s withering condemnation in Fong Yue Ting (1893) of the “indefinite and dangerous” doctrine of “powers inherent in sovereignty.” It continued with Justice Douglas and Black’s powerful dissents in Cold War “national security” cases such Kauff v. Shaughnessy (1950) and Shaughnessy v. Mezei (1953). (In the later case, Black compared the Attorney General’s “unreviewable discretion” under the plenary power doctrine with the arbitrary ruthlessness of twentieth-century Europe’s most infamous authoritarians.) And it endures in modern opinions such as Justice Souter’s powerful four-justice dissent in Demore v. Kim (2003), insisting that “the basic liberty at the heart of due process” demands that the government prove a “sufficiently compelling” reason before it can “lock away” a removable noncitizen. Although Justice Breyer’s dissent in Din is more restrained in both tone and substance, his insistence that the denial of a noncitizen’s visa application interferes with a constitutional liberty interest (albeit that of the noncitizen applicant’s American spouse, rather than the noncitizen himself), and that such interference warrants “individualized adjudication,” including the “ordinary application of Due Process Clause procedures,” resonates with longstanding pleas both on and off the Court to end to immigration law’s century-long constitutional exile.
Notwithstanding (and perhaps because of) this trend, however, the real headline of Kerry v. Din is the plenary power doctrine’s remarkable staying power. Consider, again, Justice Kennedy’s concurring opinion. Kennedy concluded that the government satisfied due process merely by citing a statutory provision (8 U.S.C. §1182(a)—the “terrorism bar”) which, as Justice Breyer points out, contains “dozens” of distinct bases for denying an application. Because such “process,” which in Berashk’s case neither identified the specific legal basis nor set forth any factual basis for the denial, cannot serve the fundamental purpose of “due process of law,” it doesn’t deserve that name. As Heeren (following Justice Breyer) observes, this analysis reeks of “intellectual disingenuousness.” And indeed, at first blush it’s difficult to conceive how Justice Kennedy, who has a deserved reputation as a defender of constitutional liberty, could possibly believe that bare citation to a complex, multi-faceted statutory provision meaningfully constrains arbitrary or otherwise improper governmental conduct. In virtually any context other than immigration, the judicial “review” sanctioned by Justice Kennedy in Din would appear charitably as an empty gesture to the rule of law.
But this is immigration law, where the normal rules don’t always apply. And in fact, once we appreciate the plenary power doctrine’s prominent role in Justice Kennedy’s concurrence, the opinion becomes intellectually explicable, if not logically coherent. As others have noted, Kennedy leans heavily on Mandel—the 1972 case in which the Supreme Court rejected a First Amendment challenge to the government’s exclusion of the Belgian Marxist journalist and scholar Ernest Mandel. The Mandel majority acknowledged that Mandel’s exclusion implicated the First Amendment right of the petitioners (American scholars who had invited Mandel to an academic conference) to hear him speak, but held that that right was superseded by the government’s plenary power to exclude noncitizens. (As the Mandel Court put it, “over no conceivable subject is the legislative power of Congress more complete than it is over the admission of aliens.”) As far as Justice Kennedy was concerned, the “reasoning and holding in Mandel control[ed]” in Din. So long as a visa denial that burdened the constitutional interest of a U.S. citizen rested on a “facially legitimate and bona fide reason,” Kennedy wrote, quoting from Mandel, “‘courts will neither look behind the exercise of that discretion, not test it by balancing its justification against’ the constitutional interests of citizens the visa denial might implicate”—an act of judicial deference that had “particular force in the area of national security.”
Yet Justice Kennedy’s characterization of Din as a straightforward application Mandel is simply not accurate. In spite of the Mandel Court’s forthright affirmation of the plenary power doctrine, the majority opinion attests that the due process revolution of the 1960s and 1970s had indeed penetrated immigration law in a meaningful if circumscribed way. Kennedy’s opinion affords Din substantially less constitutional protection than the Mandel Court provided to the citizen-petitioners in that case. First, in Mandel the government had informed Mandel of the concrete facts that led to his visa denial—specifically, Mandel’s violation of visas issued to him in the past. In fact, Kennedy attempts to evade this critical distinction by pointing to the “discrete factual predicates” enumerated in the statute under which Berashk’s visa application was denied. This is a remarkable slight-of-hand that completely evacuates the requirement of due process from anything resembling individualized consideration. Second, the constitutional interest at stake in Din—the petitioner’s right to live with her spouse in her country of citizenship—is substantially weightier that the interest at issue in Mandel—the right of American scholars to hear Mandel speak live at an academic conference. If the Court were to apply an Eldridge-style balancing test (as it would in most other contexts) the government’s burden of establishing its interest in not providing additional procedures would have been substantially heavier in Din than in Mandel. In short, alongside Justice Kennedy’s Din concurrence, Mandel looks positively progressive.
In some respects Justice Kennedy’s opinion more closely resembles pre-Warren-era decisions, when the Court would candidly acknowledge that the right to due process in immigration proceedings was little more than an empty formalism. Consider Yamataya v. Fisher (1903) (a.k.a. the Japanese Immigrant Case), which is generally credited with creating a narrow opening for procedural review (which the Chinese Exclusion Case and Fong Yue Ting had appeared to bar). Notwithstanding the political departments’ broad authority to exclude or expel aliens, the first Justice Harlan reasoned, administrative officers “may [not] disregard the fundamental principles that inhere in due process of law . . . .” While such language may appear to stake out for the Court a meaningful role in insuring procedural fairness, the actual outcome of Yamataya tells a very different story. Yamataya, a Japanese woman, had been excluded from the U.S. based on a federal immigration inspector’s finding that she was “likely to become public charge.” Yamataya appealed, claiming that she had not been afforded a meaningful opportunity to challenge the inspector’s decision. The Court acknowledged that the petitioner lacked “knowledge of our language; that she did not understand the nature and import of the questions propounded to her; that the investigation made was a ‘pretended’ one; and that she did not, at the time, know that the investigation had reference to her being deported from the country,” but nevertheless concluded that such personal “misfortune . . . constitutes no reason . . . under any rule of law, for the intervention of the court.” Or consider Knauff, in which the Court upheld the exclusion of Ellen Knauff, the German wife of an American citizen, without a hearing and on the basis of secret evidence. “Whatever the procedure authorized by Congress is,” the Court famously declared, “it is due process as far as an alien denied entry is concerned.” Knauff presented such a sympathetic figure, and her plight was considered such a travesty of justice, that the Attorney General (after considerable prodding from Congress) eventually granted her a full exclusion hearing, which ultimately resulted in her admission to the U.S. as a permanent resident after it was determined that her exclusion as a national security risk had been based on “unsubstantiated hearsay.”
Justice Kennedy’s concurrence in Din converts constitutional due process into a similar kind of empty shell. It assumes that Din held a “protected liberty interest” in the government’s consideration of her husband’s visa application, yet denies that that interest entitled either her or Berashk to information that would enable them to comprehend, let alone challenge, its rejection of his application. In so concluding, Kennedy’s opinion relieves the government of virtually any accountability in its exclusion decisions, in effect conceding that the courts will not scrutinize a consular decision that is erroneous, arbitrary, or even motivated by ill will, so long as the government remembers to cite a statute that provides for the exclusion of certain noncitizens. Not least, it serves as blunt testimony to the enduring vitality of the plenary power doctrine, as well as the logical incoherence and human injustice that it engenders.