Supreme Court hears case on Consular Nonreviewability

In what might be another chink in the armor of the Administrative State, the Supreme Court on April 23^rd heard oral argument on the doctrine of “consular nonreviewability” in the context of a U.S. Citizen whose spouse was denied a visa and given a bare bones reason for that denial.  While it’s unclear what the outcome of the case will be at this time, the Court at least, in my view, seemed sympathetic to the arguments of the U.S. Citizen.

As background, in general, a consular officer’s decision to refuse a visa is not subject to judicial review—meaning you can’t sue them about a poor decision.  Beyond this, consular records are confidential, so often times you are unable to even know why an officer made the decision they did.  The only real exception is when constitutional rights of a U.S. Citizen are implicated.  This is exactly the hook in this case.  The argument goes that the U.S. Citizen spouse’s constitutional rights related to her marriage were implicated by a poorly explained denial, and that the consulate was required to do more in giving its denial.

The ultimate outcome of the case will not be heard for some months, but this is an ongoing legal issue that, if limited in some way or overturned entirely, could open the doorway to finally having an option to review consular officer decisions that are, and have been, more or less untouchable.