A White House memo leaked two weeks ago suggests that administration officials are exploring transferring long-held consular and refugee processing responsibilities, currently held by the Department of State (DoS) Bureau of Consular Affairs and the Bureau of Population, Refugees and Migration (PRM), to the Department of Homeland Security (DHS).
As with many executive policies, the administration offered no reasoning for this proposed change. But the reasons for not implementing it are clear. This shift would unravel the doctrine of consular nonreviewability, thereby subjecting consular decisions to judicial review, further stalling visa and refugee processing. Moreover, the change would likely overextend an already overburdened DHS.
Consular nonreviewability protects DoS from having to explain why they denied an alien entry into the U.S. The Supreme Court has reasoned that consular decisions — like whether to issue a visa — do not require review by U.S. courts because DoS issues visas as part of foreign policy. Hence its decisions fall within the exclusive, protected purview of the executive branch. Although the conclusion has been challenged, the Court has consistently held that an alien is not entitled to additional procedural due process review of a consular officer’s decision.
Moving consular and refugee processing from an agency with a mission focused on foreign policy and diplomacy to DHS, which centers on “Security, Resilience, and Customs and Exchange” could take visa issuance outside of the protected plenary purview of the executive branch. Furthermore, if both visa issuance and visa screenings and admittances were housed in the same agency, it would effectively remove the inherent two-agency safeguard that exists now. The likelihood of an improper decision to exclude an alien is significantly decreased when DoS handles visa issuances and DHS conducts screenings and admittances into the U.S.
Even if these consular and refugee responsibilities remained at DoS, it seems likely that the Supreme Court will reconsider the issue based on procedural due process grounds if a U.S. citizen is challenging the decision. In a 2015 plurality decision — a holding where no single line of reasoning received a majority of the Court’s support — Justice Scalia concluded that the government did not deprive a U.S. citizen of any constitutional right entitling her to due process of law after her fiancée was denied a visa for allegedly engaging in terrorist activities. The consular office did not provide additional explanation, and the Court upheld the office’s decision as unreviewable. Justices Kennedy and Alito concurred with the judgment, but refused to agree with the majority opinion that a procedural due process right was not unlawfully denied.
The dissent, led by Justice Breyer and joined by the remaining three Justices, allows a hopeful reader to suss out a framework for the death of the doctrine. Without plenary protection and inherent safeguards to bolster the case for the doctrine, depriving a U.S. citizen of the right to live together with her husband in the United States without clear explanation or review is arguably indefensible in the realm of fundamental procedural due process rights. The consolidation of the processes under DHS proposed by the president’s recent executive action will only make it easier to prove this point in front of the Supreme Court.
So what? It may not seem like a bad policy to toss this doctrine out. After all, another check and balance is usually a good safeguard against unjust or mistaken decisions. But given that the Trump administration is bent on reducing the flow of visa and refugee processing to a slow leak — and that the backlog of immigration cases is already staggering — adding another level of review will no doubt result in glacially paced decisions that lean heavily towards rejections. And, at least for a time, those decisions will not be reviewable by any U.S. court.
Another potential consequence is that by eliminating two-agency review, we may be putting national security at risk. The DoS has been working with embassies, resettlement organizations, the United Nations, refugees, and consular officers for the better part of 65 years, resulting in processes and expertise that will be difficult to transfer to DHS. Rather than multiple, varied vetting procedures, the responsibility would rely solely on the shoulders of a strained DHS.
Over the past few years, DHS has struggled to secure adequate funding and fill staffing needs. Primarily due to the increased needs of Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), DHS requested a 5.7 percent increase in 2016, totaling $51.95 billion. President Trump’s DHS budget proposes a whopping 7 percent increase — over $3 billion additional dollars — to build part of a wall and hire more CBP and ICE agents. But for years, DHS has not been able to fill the available CBP spots, and the hiring process has been marred by an outbreak of corruption and past instances of excessive uses of force.
Shifting these responsibilities — particularly to an agency that may not want or be able to handle the additional duties — is both unwarranted and imprudent. Given the plethora of high-priority issues the Trump administration must tackle, it would be best to let this particular proposal die.
Kristie De Peña is Senior Immigration Counsel at the Niskanen Center. She has a J.D. from the University of Iowa College of Law and an LL.M. in National Security and Foreign Policy from the George Washington University School of Law.