Wednesday, June 24, 2015
Here is a contribution to the symposium by Chuck Roth of the National Immigrant Justice Center:
I appreciate the opportunity to join this discussion, which has so carefully parsed the three written opinions: Justice Scalia’s plurality opinion (joined by Roberts and Thomas); Justice Kennedy’s concurrence (joined by Alito); and Justice Breyer’s dissent (for the four dissenters). I don’t think I disagree with anything which has been said here. But my subject here is the sum of the parts. That is, regardless of the merits of the various opinions, what precisely is the holding of Kerry v. Din? That turns out to be rather an involved question.
Marks and the Narrowest Grounds Approach
As has been noted for years in the academic literature , it’s not entirely clear what is sufficient to constitute a holding in cases involving splintered opinions. The rule enunciated by the Supreme Court is the “narrowest grounds” approach: if there is no one rationale which commands the votes of five justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193 (1977). But the apparent clarity of Marks masks great difficulties in application.
The biggest problem arises when there is no common denominator between multiple opinions. The D.C. Circuit position is that to be binding there must be “a position implicitly approved by at least five Justices who support the judgment,” i.e., it must contain a “controlling rationale.” King v. Palmer, 950 F.2d 771, 781 & n.6 (D.C. Cir. 1991) (en banc). Under the rule of the D.C. circuit, “one opinion can be meaningfully regarded as ‘narrower’ than another… only when one opinion is a logical subset of other, broader opinions.” Id. at 781.
Moreover, while the narrowest grounds portion of Marks looks only to justices who agreed with the judgment, that analysis applies only where “no single rationale explaining the result enjoys the assent of five Justices.” 430 U.S. at 193. The First and Third Circuits permit consulting the reasoning of dissenting justices to determine the holding; under this approach, if five justices agree on a principle it can constitute a holding even if some dissent as to application in that case. See Student Pub. Interest Research Group of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1451 (3d. Cir. 1988); United States v. Johnson, 467 F.3d 56, 65 (1st Cir. 2006).
Ratio Decidendi in the Three Din Opinions
There is reason to doubt that any proposition expressed in the three opinions actually commanded a majority of the court. The Court did not adopt or reject the doctrine of consular nonreviewability. The Court did not determine the constitutional rights of Ms. Din. The Court did not determine whether she had standing. The Court did not necessarily find that the Mandel standard was applicable to visa matters generally; or to spousal cases specifically. The Court did not necessarily find Mandel to be the outer limit to judicial review generally; nor in national security cases. The Court did not even determine the content of the Mandel standard as applicable to the facts of Din. The lower courts will doubtless puzzle over this decision; but it appears there is no common ratio decidendi, and thus no holding at all. The Kennedy concurrence comes closest; but in the end, for reasons I explain below, it is not narrower than the other two opinions, but simply different. To illustrate, let me consider several propositions, to explain why none necessarily commanded five votes as expressed in the three written opinions.
1. Consular nonreviewability. In Mandel, the Supreme Court found it “clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise.” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). In Justice Scalia’s plurality opinion, this language morphs into Din’s Afghani husband having “no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission.” Slip Op. at 1 (citing Mandel, 498 U.S. at 762). (As an aside, Mandel found no “constitutional right of entry”; it did not purport to determine whether he might have a statutory right as against the executive, nor did not address a cause of action at all.) This language from the Din plurality is passing dicta; the discussion explains why Ms. Din pressed the claim rather than her husband, but does not represent a judgment regarding the logic of the doctrine of consular nonreviewability. Moreover, the Scalia plurality is primarily concerned with explaining that Ms. Din herself had no constitutional rights with regard to her husband’s admission (so much so that some commentators saw the plurality as related to the Court’s impending decision on same sex marriage). It is plainly possible for one individual to have a constitutional right which is not shared by another.
Justice Kennedy’s concurrence likewise does not expressly permit consular nonreviewability. It does cite plenary power language from United States ex rel. Knauff v. Shaughnessy, 338 U. S. 537, 543 (1950), but it cites it for the proposition that “the Government’s decision to exclude an alien it determines does not satisfy one or more of those conditions is facially legitimate under Mandel.” Slip Op. at 4. Justice Kennedy’s concurrence defers to “the political branches” due to the sensitive national security context; his opinion does not address the possibility that the executive branch would misinterpret a statute, such that the political branches would be in disagreement. Nor does Justice Breyer’s dissent endorse consular nonreviewability (though it finds the lack of notice to the applicant relevant to the constitutional calculus).
Insofar as neither the Scalia plurality nor the Kennedy concurrence endorses the government’s position on consular nonreviewability, the Court’s decision does not resolve the status of that doctrine. The Court had before it amicus briefs filed by law school professors and NIJC and AILA which both argued against consular nonreviewability. (N.b., I was co-counsel on the latter brief.) It appears that most of the arguments made in those briefs remain viable notwithstanding the decision.
2. The constitutional status of spousal interests. The Scalia plurality would have decided the case on the basis that Ms. Din had no constitutionally protected interest in being together with her husband within the United States. Justice Kennedy found it unnecessary to decide the question, because assuming arguendo the existence of such an interest, he found that Ms. Din would still lose. As Justice Breyer noted, the plurality opinion cannot be considered controlling on this point, since Justice Kennedy’s concurrence expressly declined to join that reasoning. That said, Justice Kennedy did not expressly agree with the dissent on this point, either. Thus, there were not five votes to resolve the question of whether Ms. Din had a constitutionally protected liberty interest.
3. Spousal standing. A question closely related to the constitutional rights of Ms. Din was whether she had standing to challenge the refusal to provide information to her. See Brief for the Petitioner at 17, n.8. In oral argument, Justice Scalia doubted standing, suggesting that standing in Din would imply that “the wife would have standing to appeal a wrongful conviction of her husband” if he were inclined not to appeal. Transcript at 8. Justice Scalia had no need to address this question because he found no constitutional interest implicated in the visa denial. Justice Kennedy implicitly resolved the information claim against Ms. Din on the merits, by finding that the information provided was constitutionally adequate; but he did not explicitly find whether she had standing to raise the claim. Since no justice explicitly addressed standing, it seems safe to conclude that the issue was not resolved. ).
4. Whether Mandel applies to visa cases generally, or spousal cases particularly. It might be argued that Din stands for the proposition that Mandel should be applied to cases like this one, where a U.S. citizen spouse sues to vindicate her interests in the immigration of her noncitizen spouse. There are two problems with this. First, not one justice actually holds that Mandel would apply to this scenario. Justice Kennedy’s concurrence assumes arguendo that it would apply, but does not so hold. Justice Scalia would not assess the visa denial even under the super-deferential Mandel standard. Justice Breyer and the dissenters would apply a broader test. It follows that there were not five votes to apply this standard.
5. Whether a U.S. citizen spouse challenging a visa denial may at most obtain Mandel review. This is a closer question. Since Justice Scalia would grant no review, and Justice Kennedy would find due process satisfied by Mandel review, it could be argued that five justices adopted a rule which would grant no more than Mandel review in this context.
Justice Kennedy did indeed find Mandel to be controlling, and he expressed his understanding of it in these terms: “[Mandel] was based upon due consideration of the congressional power to make rules for the exclusion of aliens, and the ensuing power to delegate authority to the Attorney General to exercise substantial discretion in that field. Mandel held that an executive officer’s decision denying a visa that burdens a citizen’s own constitutional rights is valid when it is made ‘on the basis of a facially legitimate and bona fide reason.’” Slip Op. at 3. If Justice Kennedy had stopped there, the argument that a claimant may at most raise claims under Mandel would be strong.
However, Justice Kennedy went on to qualify his reasoning, finding that Mandel “has particular force in the area of national security,” Slip Op. at 3, and later noting that “Congress evaluated the benefits and burdens of notice in this sensitive area and assigned discretion to the Executive to decide when more detailed disclosure is appropriate.” Id. at 5. Because Justice Kennedy appeared to conduct a multi-factor test in which the national security context was an important factor, that implies that in non-national security cases, a different, more favorable test might be applied.
6. Whether a U.S. citizen spouse challenging a national security-based visa denial may at most obtain Mandel review. Let us then add one more modifier to the proposed holding. Perhaps one might characterize Justice Kennedy’s opinion as finding Mandel to satisfy due process for a spouse, at least in the national security context. Again, this has a surface plausibility. It is certainly true that Justice Scalia’s plurality would grant even less review than would Justice Kennedy; and that Justice Kennedy found Mandel review to satisfy due process in this case.
There is, however, reason to doubt this; which can be illustrated by considering the analysis in a particular order. Justice Breyer – speaking for four justices – finds judicial review permitted (he does not specify any particular standard). Justice Kennedy may agree. Thus, if in Case 1, the Court were to address only the question of whether some judicial review exists, it might agree, and remand. But if in Case 1, a majority of the Supreme Court were to hold that a citizen spouse may obtain judicial review over visa denials, it is not clear whether the members of the Scalia plurality would find judicial review limited to the Mandel standard. Mandel is constitutional in nature; but black letter law requires courts to construe statutes (where possible) to avoid constitutional infirmity before ruling on constitutional grounds. If a majority of the Court were to find some judicial review required, it is unclear whether the members of the Scalia plurality would agree to limit that review to the “facially legitimate and bona fide” standard of Mandel which, after all, has no statutory basis. The traditional APA standard, by contrast, has a statutory basis. Several members of the plurality are textualists and generally prefer to rely on statutory grounds rather than untethered constitutionalized reasoning. It would require only one vote from the plurality to join with the four dissenters for there to be five votes to permit judicial review under the APA standard rather than under a judicially-created Mandel standard.
Because it is unclear whether all three members of the plurality would limit review over national security-based visa denials to Mandel – even if Justice Kennedy would limit judicial review in that manner – it is unclear whether that proposition could command five votes. To treat Justice Kennedy’s concurrence as expressing a holding on this point would make the two-justice concurrence the law of the land, even if seven justices would disagree; that would “turn a single opinion that lacks majority support into national law,” a result which seems plainly wrong. King, 950 F.2d at 782.
7. Whether Mandel review is satisfied – at least in the national security context – by the mere provision of a statutory citation. Portions of Justice Kennedy’s concurrence seem to find Mandel review satisfied because the consular officer informed Ms. Din that her husband had been found inadmissible under INA § 212(a)(3)(B), without further explanation. However, Justice Kennedy also found it relevant – it is unclear to what extent – that Ms. Din’s husband was admittedly employed by the Taliban-controlled government. This, reasons Justice Kennedy, provides some factual connection between him and the inadmissibility ground. But then what would happen in another case, where the noncitizen seeking admission makes no similar admission, so that there is no factual connection between the ground alleged and the noncitizen seeking admission? Would Mandel be satisfied in that context by mere statutory citation? The Kennedy concurrence is unclear on this point.
Moreover, as noted above, the Scalia plurality does not purport to address the case applying the Mandel standard. If a majority of the Court were to find Mandel applicable in this context, Justice Scalia might persist in his view that no review is authorized; but he might also regard that conclusion, in any subsequent case, as res judicata. The plurality opinion gives no ground for confidence regarding how the three justices in the plurality would approach a Mandel analysis, assuming the Court were to adopt that test. The dissent offered strong reasons for concluding that a mere statutory citation does not offer a sufficient factual explanation, given the convoluted and factually divergent nature of § 212(a)(3)(B). The plurality did not address those reasons, which were after all irrelevant to its analysis. It follows that we cannot say with any confidence that five justices would hold that a mere statutory citation would satisfy Mandel review, to the extent that Mandel review exists in this context.
Of course, even if the lower courts agree with this analysis, it would mean only that Din lacks a holding. The three written opinions would still have persuasive value for lower courts. In splintered opinions like this, some academic commentary suggests that the Court looks to lower courts to help explicate its opinion, as a prelude to resolving the tensions in a subsequent case. That said, one consequence of the lack of a holding in Din is that it would leave in place existing circuit case law, case law which generally binds subsequent three-judge panels. Thus, for better or worse, Din likely leaves in place Ninth Circuit case law such as Bustamante v. Mukasey, 531 F.3d 1059 (9th Cir. 2008) and Ventura-Escamilla v. INS, 647 F.2d 28 (9th Cir. 1980). Other circuits, less constrained by prior case law, may be better-positioned to comment on Din. This question seems destined for future Supreme Court review in another case; we will need to await that next case to get clarity on the law in this fascinating and complex area.