Our system of government with its checks and balances has a ready answer for these questions: the federal courts. However, this answer places one of the government’s favorite fig leaves in jeopardy of blowing away. For years the government has tried to hide questionable immigration decisions by issuing them at overseas consulates, then arguing that decisions made at consulates cannot be reviewed by courts. This “doctrine” of consular non-reviewability placed individuals in a catch 22. However, this argument has been irreparably damaged by Travel Ban 3.0.
Judicial review of executive action has been the province of the courts since Marbury v. Madison. That said, before passage of the Administrative Procedures Act (APA) the procedure for challenging government action was confusing and fraught with pitfalls.
The APA re-articulated the presumption that all final executive actions are subject to judicial review. The APA also created a simple framework by which final agency actions could be challenged in federal court. Judicial review is a key check on executive power, and courts will exercise this power unless Congress has explicitly precluded it in statute.
The INA has a handful of such explicit jurisdiction stripping provisions that are narrowly tailored to achieve particular objectives. The most common jurisdictional bars in immigration law seek to promote efficiency by preventing federal court review of cases processing through immigration court.
Historically the government has alleged that decisions made at a US consulate are immune from judicial review. Unlike other jurisdictional stripping provisions in the INA, the “doctrine of consular non reviewability” is not found in the text of the INA. It is the creation of the DC Circuit.
In creating this “doctrine” the DC Circuit looked at a collection of statutes and opined that taken together Congress intended to deny judicial review of consular decisions. (Ironically, while immigration opponents have no objection to this judicially created doctrine, they vehemently object to similar reasoning that finds specific rights can be extrapolated from the “penumbra of rights” to privacy. See Roe v. Wade)
The “doctrine” is not universally accepted, and but for a proxy war on marriage equality in Kerry v. Din it would have been abrogated. (The outcome effectively granted that non US citizens denied entry by a consulate may challenge the decision in court provided they have a significant interest. However, the justices tried to use the decision as a stepping stone for their partisan agendas on the extent to which the Constitution grants rights to marriage. The case ended up a 4-4 decision.)
The government’s briefing in Hawaii v. Trump showed tepid support for the longevity of the “doctrine.” Indeed, the government’s claim of statutory support for the travel ban undercut future arguments in support of the doctrine.
According to its briefs in Hawaii v. Trump, the government asserts Travel Ban 3.0 is authorized in part by 8 USC 1185(a)(1). This section allows the President to make “reasonable rules, regulations, and orders” to control the entry and exit of foreigners from the US.
This grant of rule making authority is a common invocation of the Administrative Procedures Act (APA). The APA prohibits the executive branch from making arbitrary and capricious rules and decision, and requires decisions be based on law and evidence. Congress ensures the executive acts in a “reasonable” manner by granting judicial review of final agency actions. When the APA applies, the courts presume Congress intended review of actions unless it has explicitly precluded review.
Thus the very arguments the administration made to legitimize the travel ban undercuts any arguments against judicial review.
The “doctrine” had been teetering on the edge of abrogation for years. The administration unintentionally pushed it over that edge in its attempt to create the Travel Ban. The “doctrine” lacks the explicit statutory support courts typically require to preclude judicial review.
Moreover the standards in Section 1185 (requiring reasonable rules) and the Ninth Circuit opinion (substantial ties) are meaningless if the administration is immune from judicial review.
The “doctrine” is all but dead, and the death certificate will state the cause as Travel Ban 3.0.