The Doctrine of Consular Nonreviewability in the Travel Ban Cases: Kerry v. Din Revisited
31 Pages Posted: 23 Feb 2018 Last revised: 16 Mar 2018
Date Written: February 1, 2018
When ruling on the recent Travel Ban Cases, the judges of the 4th and 9th Circuit Courts were required to consider the question of justiciability. To answer this, they turned to the Doctrine of Consular Nonreviewability and Justice Kennedy’s concurring opinion in the U.S. Supreme Court decision Kerry v. Din (2015). Interestingly, the judges interpret both the doctrine and Kennedy’s concurrence in different ways, and so have begun to define the scope of the Doctrine of Consular Nonreviewability, thereby interpreting the crucial Mandel test distinctively, too. Several questions arise from the Travel Ban Cases. First, it must be asked if they can be seen as appropriate application cases of the Consular Nonreviewability Doctrine. If the proposed executive action was properly addressed by the courts, it must then be determined which judge(s) had the correct reading of Kennedy’s concurrence in Kerry v. Din and the precise interpretation of the Mandel test. To answer these questions, the paper takes account of the Doctrine of Consular Nonreviewability, its “cousin” the Plenary Power Doctrine, Kerry v. Din and the Travel Ban Cases. It has to be examined how these cases ended up in front of American courts via the construction of a “third-party” or “indirect standing” to avoid the legal fact that there is no real standing for aliens outside the U.S. territory. A short comparative analysis shows the differences to the legal systems of Germany and Great Britain. A closer look at how the judges made use of Kennedy’s concurrence in Kerry v. Din and of the Mandel test illustrates whether or not the judges in the Travel Ban Cases were correct to apply the Doctrine of Consular Nonreviewability. A further distinction between the Travel Ban Cases and Kerry v. Din can be drawn by looking at the (non-)analysis of substantive due process: is there a possible fundamental right for those affected by the travel bans that was not addressed in the courtrooms so far?
Keywords: Travel Ban, Kerry v. Din, Immigration Law, Doctrine of Consular Nonreviewability, Judicial Review, Constitutional Law
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