Monday, January 19, 2015

Plenary Power Showdown in Supreme Court in Kerry v. Din?

I have been reading the briefs in Kerry v. Din, which has oral arguments before the Supreme Court scheduled for February 23.  Last week, Respondent Fauzia Din's brief was submitted by counsel of record Mark E. Haddad of Sidley Austin LLP

The issues in Kerry v. Din are shaping up in an interesting way.  In my estimation, the case has the potential for being an important immigration decision -- going well beyond the number of immigration cases, including Mellouli v. Holder argued last week, taken by the Court in recent years dealing with issues of interpretation of the immigration statute and the appropriate deference afforded agency interpretation of the statute.

Kerry v. Din raises the doctrine of consular nonreviewability, i.e., the general rule that the visa decisions of U.S. State Department consular officers are not subject to judicial review.  That doctine is a corollary of the infamous plenary power doctrine, the bulwark of immigration exceptionalism and a legacy of The Chinese Exclusion Case, which historically has immunized from judicial review the subtantive immigration judgments of Congress and the Executive Branch.  It seems fair to say that law professors love to hate the plenary power doctrine. 

The main briefs of the Solicitor General and Din have focused on the application of the doctrine of consular nonreviewability, some jousting on the scope of the plenary power doctrine (including on the applicability of Cold War plenary power relics Knauff and Mezei), and the applicability of a case generally viewed as a limit on the plenary pwer doctrine, Kleindienst v. Mandel (1972).

I look forward to reading the amicus briefs and the reply brief of the United States, which have not yet been filed.  Stay tuned for a preview of the arguments on SCOTUSBlog, with links on ImmiigrationProf.


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