Consular Nonreviewability

• Publication year: 2022

Consular Nonreviewability

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Fifty Years Since Kleindienst v. Mandel

Eric Lee and Sabrina Damast ^*

Abstract: The doctrine of consular nonreviewability has hampered challenges to visa denials for decades. Most case law has been bad, but a few recent litigation successes should inspire attorneys to consider federal court action when consular officers engage in bad faith. The article includes a review of case law, as well as several recent district court successes and strategic considerations to evaluate when considering litigation.

Fifty years ago this year, the U.S. Supreme Court ruled in Kleindienst v. Mandel ¹ that the judicial branch may not review the constitutionality of a visa denial made by the executive branch, provided the denial is "facially legitimate and bona fide."

The Supreme Court case came on interlocutory appeal from a panel of the U.S. District Court for the Eastern District of New York, which had enjoined Attorney General John Mitchell from enforcing the Immigration and Nationality Act of 1952 (also known as the McCarran-Walter Act) against Belgian professor and socialist-liberal Ernest Mandel. The district court ruled that the Act's subsections barring entry to visa applicants who believe or teach "the economic, international, and governmental doctrines of world communism" or who circulate, print, display, or possess for those purposes any written articles or books advocating "world communism" violated the First Amendment. Even if the Constitution did not impact the rights of Mandel, the district court held that the subsections violated the free speech rights of six professors who had invited Mandel to speak at a conference at Stanford University in 1969. ²

In its ruling, the district court heralded a break from the McCarthyite traditions of the recent past. It praised the Supreme Court's decision in New York Times Co. v. Sullivan ³ as marking "the emergence in clarity of the view of the First Amendment as a fundamental principle of the form of American constitutional government; accepting the premise that the people, not the government, possess the sovereignty." ⁴

The Supreme Court disagreed. In a 6-3 ruling delivered on June 29, 1972, the Court ruled it would not balance the plaintiffs' constitutional rights against the executive branch's interest in controlling visas and immigration. Provided the attorney general ⁵ could establish the visa denial was "facially legitimate and bona fide," the Court held, the courts have no power to review the constitutionality of the consular officer's decision.

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Justice Blackmun, writing for the majority, explained that this "doctrine of consular non-reviewability" was rooted in "ancient principles of the international law of nation-states." ⁶ The power to exclude foreign persons is "inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers," Blackmun wrote. ⁷ To support these principles, which served as the legal foundation of the Court's decision, Blackmun cited only two cases: Chae Chan Ping v. United States, ⁸ also known as The Chinese Exclusion Case, and Fong Yue Ting v. United States. ⁹

Before the Supreme Court, the Nixon administration argued that the six professors' First Amendment rights were not restricted because there were alternate means of soliciting Mandel's political views for the conference to which he was invited, including through a written speech or recording. The Mandel majority rejected this argument, writing that it was "loath to" diminish "any constitutional interest" on the part of the plaintiffs. ¹⁰ In fact, the Court wrote that the First Amendment is "nowhere more vital" than in schools and universities, where Mandel was slated to speak. ¹¹

Although the court was evidently attempting to limit any damage to the First Amendment and moderate its decision, this aspect of the ruling ironically would become the most dangerous and influential. By acknowledging that the denial violated the most cherished constitutional rights of American citizens while also ruling that the fact of the violation "is not dispositive," the majority established that there were no limits to the scale of the constitutional violations that could be shielded by the doctrine of consular nonreviewability, provided the visa denial was "facially legitimate and bona fide." ¹² As for the meaning of this exception, the Mandel Court ruled that because Congress delegated the power to bar the admission of advocates of world communism to the attorney general, and because Mandel had violated a past visa, the denial was facially legitimate and bona fide. The bar was set exceptionally low.

The decision embodied the ideological shift on the Supreme Court that was by then still in its early stage. Four of the six majority votes in Mandel came from Nixon appointees replacing the heart of the Warren Court—Rehnquist replacing Harlan, Powell replacing Black, Blackmun replacing Fortas, and Burger replacing the former Chief Justice himself. Brennan and Douglas joined a prescient dissent penned by Thurgood Marshall, who warned:

I, too, am stunned to learn that a country with our proud heritage has refused Dr. Mandel temporary admission. . . . Today's majority apparently holds that Mandel may be excluded and Americans' First Amendment rights restricted because the Attorney General has given a "facially legitimate and bona fide reason" for refusing to waive Mandel's visa ineligibility. I do not understand the source of this unusual standard. Merely "legitimate" governmental interests cannot override constitutional rights. Moreover, the majority demands

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only "facial" legitimacy and good faith, by which it means that this Court will never "look behind" any reason the Attorney General gives. No citation is given for this kind of unprecedented deference to the Executive, nor can I imagine (nor am I told) the slightest justification for such a rule. . . .
All governmental power—even the war power, the power to maintain national security, or the power to conduct foreign affairs—is limited by the Bill of Rights. When individual freedoms of Americans are at stake, we do not blindly defer to broad claims of the Legislative Branch or Executive Branch, but rather we consider those claims in light of the individual freedoms. This should be our approach in the present case, even though the Government urges that the question of admitting aliens may involve foreign relations and national defense policies. ¹³

In the 50 years since its issuance, Mandel has served as a basis for the creation of an exceptional area of American law where Justice John Marshall's cardinal rule—"it is emphatically the province and duty of the judicial department to say what the law is"—no longer meaningfully applies. In the context of a half century of mass migration, Mandel has given the executive branch the power to deny admission to the parents and spouses of countless U.S. citizens without judicial review. Under the auspices of the war on terror, Mandel has given the executive branch the power to close the borders and ports of entry to travel from broad sections of the world. In Trump v. Hawaii, ¹⁴ Justice Roberts relied on Mandel to uphold the constitutionality of Donald Trump's Executive Order 9645 banning admission from Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen.

From a practitioner's standpoint, the most concerning element of Mandel's legacy is that the courts have rendered its "facially legitimate and bona fide" exception meaningless. Recent litigation reveals that the executive branch is employing Mandel to argue for an interpretation of "facially legitimate and bona fide" that would effectively prevent the executive from being burdened by the U.S. Constitution in affairs related to admissibility.

The first part of this article addresses the roots of Mandel's nonreviewability principle in the Chinese and Japanese exclusion cases. The second part offers a retrospective view of how the decision's rationale has broadened far beyond the scope of the facts in Mandel to impact the rights of literally tens of millions of U.S. citizens in a manner the Mandel majority could not have foreseen. The third part addresses treatment of Mandel by the courts and, specifically, Justice Kennedy's controlling concurrence in Kerry v. Din. ¹⁵ The fourth part reviews arguments made by the executive branch in recent litigation that exemplify the type of constitutional abuse carried out behind Mandel's shield, and the Conclusion speaks to the potential for further abuse of Mandel in the context of the climate of anti-immigrant rhetoric spurred by former President Trump.

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The Roots of Mandel and the Contested Legacy of Chinese Exclusion

It is well established that Chae Chan Ping v. United States (The Chinese Exclusion Case) is "the fountainhead of the plenary power doctrine" and consular nonreviewability. ¹⁶ The racist roots of Chae Chan Ping and associated cases (including Fong Yue Ting v. United States ¹⁷ and Nishimura Ekiu v. United States ¹⁸ (in which the plaintiff was Japanese)) have been extensively documented in numerous well-researched articles. ¹⁹

Nevertheless, Chae Chan Ping, FongYue Ting, Nishimura Ekiu, and kindred nineteenth-century cases limiting judicial review of immigration remain "good law." As referenced above, Mandel cited Chae Chan Ping and Fong Yue Ting in upholding the doctrine of consular nonreviewability on the grounds that the power to exclude foreign nationals is "inherent in sovereignty" because it relates to foreign policy conduct and is necessary for "defending the country against foreign encroachments and dangers." ²⁰ There is no source for the "inherent sovereignty" and plenary power other than the late-nineteenth-century exclusion cases.

Numerous scholars have attacked the ongoing reliance on the Chinese exclusion cases on clear and well-enumerated...