Exactly 800 years to the day after King John agreed at Runnymede to the terms of Magna Carta, the United States Supreme Court sharply divided over the meaning of the American Constitution’s implementation of what is arguably the most central provision of both the English and American documents. On Monday, by a 5-4 vote in Kerry v. Din, the Court rejected a claim that a U.S. citizen was entitled to a detailed explanation of why the government would not allow her husband a visa to enter the country. In the course of so doing, Justices Scalia and Breyer presented dramatically different views of our constitutional order.
The Issue in Din
Fauzia Din married Kanishka Berashk in 2006 and became a U.S. citizen in 2007. However, the U.S. government denied Berashk’s visa application, invoking a statutory provision that lists numerous grounds for exclusion. Although the government has never provided any further details regarding the grounds for the denial, it appears that the decision was based on the fact that Berashk worked as a payroll clerk for a department of the Afghan government during a period when the Taliban ruled Afghanistan, and thus, in the view of the U.S. government, had impermissibly provided support to a terrorist organization.
On her husband’s behalf, Din sought a further explanation of the government’s reasoning. After all, serving as a functionary in what was, at the time, the government of Afghanistan, does not necessarily make one a terrorist. But the U.S. government refused to provide any explanation beyond its invocation of the statute. Din sued, claiming that the failure to provide any factual basis (and thus, by implication, to provide any opportunity for her and Berashk to rebut the government’s reasoning) deprived her of her “liberty . . . without due process of law” in violation of the Fifth Amendment.
That Due Process Clause is generally regarded as the lineal descendant of Magna Carta’s provision forbidding imprisonment and the deprivation of other “liberties” except “by the law of the land.” Yet despite its antiquity—or perhaps even because of its antiquity—just what these terms mean today is a matter of hot dispute. In particular, the Justices disagree both over what counts as a deprivation of “liberty” sufficient to trigger the procedural protections of the Due Process Clause and over what those protections are in different contexts. Both cleavages were on display in Din.
The Justices divided into three groups in Din. Justice Breyer wrote for himself and Justices Ginsburg, Sotomayor, and Kagan. He concluded that Din’s interest in living with her husband in the United States was sufficiently important to trigger the Due Process Clause and that the government’s mere citation of a long statutory provision without any further details did not satisfy the requirement of notice that is a basic element of due process.
Justice Kennedy wrote for himself and Justice Alito. He assumed without deciding that Din’s interest in living with her husband in the United States counted as a sufficient liberty interest to trigger due process protections, but found that—in light of the government’s traditionally broad power over immigration and the need to defer to the elected branches in matters of national security—the government’s mere invocation of a statutory provision that includes national security concerns was all the “process” that was “due” to Din.
Justice Scalia delivered the judgment of the Court but wrote an opinion that only expressed his views and those of Justice Thomas and Chief Justice Roberts. It was nonetheless denominated the lead or plurality opinion because Justice Scalia’s bottom line was the same as Justice Kennedy’s, and together their respective opinions commanded a majority. However, it is important to understand that the views Justice Scalia expressed do not have the force of law.
Justice Scalia’s Sweeping Opinion
And a good thing that is, because Justice Scalia’s views are, to put it bluntly, outlandish. Justice Scalia rejected Din’s claim out of hand because, in his view, the Constitution simply does not protect the right of a citizen to live in the United States with her noncitizen spouse. Thus, he thought that the procedural protections of the Due Process Clause were not even triggered.
The core of Justice Scalia’s disagreement with Justice Breyer concerns a somewhat technical question. Justice Breyer read the prior precedents to establish that the procedural protections of the Due Process Clause are triggered by government intrusions on liberty interests that are either recognized by subconstitutional law such as a statute or that are “sufficiently important for procedural protection.” Justice Scalia claimed that none of the prior cases established the latter category as warranting procedural protection, dismissing as dicta the statements in prior cases that said that importance alone was sufficient to trigger the Due Process Clause.
In rejecting importance as a trigger, Justice Scalia connected the procedural question in the case to an issue that was not actually before the Court in Din—whether the substantive constitutional right to marry includes a right of a citizen to live in the United States with her noncitizen spouse. A long line of Supreme Court cases holds that certain fundamental rights are protected against substantive interference. When the Court holds that a right is fundamental for substantive due process purposes, the government may not infringe that right absent a very good reason, even if the government provides a panoply of procedural protections. For example, even if the government proves beyond a reasonable doubt that a married couple used contraception, or that a same-sex couple had consensual sex, the cases of Griswold v. Connecticut and Lawrence v. Texas respectively forbid the government from imposing any punishment for these substantively protected acts.
Justice Scalia has long been a critic of the entire body of substantive due process case law, and his opinion in Din restates his criticism. However, he also argues that even accepting the cases that recognize a constitutional right to marry, that right does not include substantive or procedural protection for the right of a citizen to live in the United States with her noncitizen husband. In a startling display of formalism, Justice Scalia says that “the Federal Government here has not attempted to forbid a marriage,” adding later in the opinion that “Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside.”
That is a shockingly callous characterization of Din’s circumstances and careful Court watchers will probably see in it a portent of what Justice Scalia may have to say about the scope of the marriage right in Obergefell v. Hodges, the same-sex marriage case on which the Court is expected to rule by the end of this month. For me, however, the lead opinion’s callousness calls to mind a different analogy.
My late mother-in-law narrowly survived the Holocaust, in part by taking on a false identity so she could live in Slovakia. After the war ended, the Iron Curtain separated her from her husband. She pleaded with the Communist authorities to permit her to emigrate to the United States to join him. They told her that she had no need to leave because there were plenty of men available in eastern Europe. It would be another year and a half before she was able to come to this country and restart her life.
Totalitarian regimes separate families with impunity. The United States of America should be permitted to do so, if at all, only in response to the most pressing concerns. As we celebrate Magna Carta’s 800th anniversary, it does not seem too much to ask of the government that it provide better reasons for such drastic measures than were offered by Stalin’s henchmen.