This will continue my discussion of the Supreme Court's June 15 decision in Kerry v. Din which I began on June 16. One of my colleagues, in a personal communication, has suggested that the entire issue of whether a USC marriage partner has a Constitutional right that may be "burdened" by denying an immigration benefit to that person's spouse is irrelevant in the visa denial context.

This is because State Department procedures do not provide for a right to appeal from visa denials. At the most, they allow the applicant to ask for discretionary review of the denial (or to reapply, which in the context of this case, would have obviously been futile). See 9 FAM 41.121 PN 1.2-7

This argument, however, overlooks the central issue in the Din case. This issue was whether the above State Department policy, compounded by the fact that the USC spouse was not given any explanation about the factual reasons for the denial, making it even harder for her to articulate a basis for discretionary review, deprived her of a Constitutional right, based on her marriage relationship.

If it did, then the Constitution would take precedence over whatever procedures the State Department has in place limiting the right to review the visa denial, unless the Supreme Court determined that the Constitution has no place whatsoever in visa related matters.

In that case, FAM would be the supreme law of the land, not the United States Constitution. But nothing in Justice Scalia's opinion supports that view. if Justice Scalia had intended to hold that visa denial decisions are beyond the reach of the US Constitution, there would have been no reason for him to go to such great lengths to discuss whether or not the USC spouse's marriage rights were protected by the Constitution in this particular case.

Instead, Justice Scalia could have simply, in one or two sentences, held that it it not matter whether or not Ms. Din had a Constitutionally protected right to live with her husband in the United States, because visa denials, if not immigration matters in general, are beyond the reach of the Constitution. But Justice Scalia did not so state.

There is such a doctrine (or at least used to be not so long ago), known as "Plenary Power" over immigration. As I have pointed out elsewhere, this doctrine was developed back in the days of the notorious Chinese exclusion laws to make it easier for Congress and the executive to exclude or expel racial minorities without interference from the courts.

While no longer as extensive as it once was, the Plenary Power doctrine still has an interesting half life, or afterlife, as shown in Justice Kennedy's concurring opinion which I will discuss in the next installment of this series. Plenary Power may even provide a stronger legal basis for upholding President Obama's executive actions on immigration than most people realize.

Justice Scalia's plurality opinion, however, did not rely on the Plenary Power doctrine as a basis for his decision. Instead, his opinion went to great lengths to argue that Ms. Din did not have a Constitutionally protected right in her marriage relationship in the first place. If she had had such a right, Justice Scalia's opinion, while admittedly dictum on this point, implied that she might have also had the right to review her husband's visa denial.

In Justice Scalia's words:

"Although Din and the dissent borrow language from those cases invoking a fundamental right to marriage. they both implicitly concede that no such right has been infringed in this case." ​ (Bold added.)

This at least leaves the door open to a possible future decision that in a case where a visa applicant (or a petitioner on that person's behalf) is able to show that he or she has a Constitutional right which is being infringed by a visa denial, the State Department would be required to review the denial.

This is certainly the view of the dissent in the Din case, which was signed by all four liberal Justices, and will be discussed in a future post dealing with this important case.

Justice Scalia also may appear to have been less than totally comfortable with his conclusion that there no Constitutionally protected marriage right that was infringed, or "burdened" by the visa denial. He admits that the right to enter into marriage is protected by the Constitution, by citing Loving v. Virginia 388 U.S.1 (1967) in which a unanimous Supreme Court overturned a state ban on interracial marriages on Constitutional grounds.

But Justice Scalia tries to distinguish Loving on the grounds that:

"...the Federal Government here has not attempted to forbid a marriage."

True enough, the federal government did not forbid Ms. Din from marrying her husband. The government only forbade her from living together with her husband in the United States, her country of citizenship. Arguing that preventing her from living with her husband in her own country is not an infringement of her marriage rights is standing on very thin ground indeed.

In my next post, I will discuss Justice Kennedy's concurring opinion, which, unlike Justice Scalia's, does rely on what might be called a modified or limited version of the Plenary Power doctrine, as I have mentioned above. It will be instructive to see what Justice Kennedy has to say about it.
Roger Algase is a New York lawyer who has been helping skilled, professional and family-based immigrants with work visas and green cards for more than 30 years. He is a graduate of Harvard College and Harvard Law School, and a member of the bars of New York and New Jersey, as well as various federal district and circuit courts and the United States Supreme Court.

His practice is focused on H-1B specialty worker, O-1 outstanding achievement and L-1 intracompany transferee work permits, and J-1 training visas; as well as green cards through labor certification, extraordinary ability and opposite sex or same sex marriage. Roger's email address is