SUPREME COURT OF THE UNITED STATES
_________________
No. 13–1402
_________________
JOHN F. KERRY, SECRETARY OF STATE,
et al., PETITIONERS
v. FAUZIA DIN
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 15, 2015]
Justice Breyer, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, dissenting.
Fauzia Din, an American citizen, wants to know
why the State Department denied a visa to her husband, a
noncitizen. She points out that, without a visa, she and her
husband will have to spend their married lives separately or
abroad. And she argues that the Department, in refusing to provide
an adequate reason for the denial, has violated the constitutional
requirement that “[n]o person . . . be deprived of life,
liberty, or property, without due process of law.” U. S.
Const., Amdt. 5.
In my view, Ms. Din should prevail on this
constitu-tional claim. She possesses the kind of “liberty”
interestto which the Due Process Clause grants procedural
pro-tection. And the Government has failed to provide her with the
procedure that is constitutionally “due.” See
Swarthout v.
Cooke, 562 U. S. 216, 219 (2011) (
per curiam)
(setting forth the Court’s two-step inquiry for procedural due
process claims). Accordingly, I would affirm the judgment of the
Ninth Circuit.
I
The plurality opinion (which is not
controlling) concludes that Ms. Din lacks the kind of liberty
interest to which the Due Process Clause provides procedural
protections.
Ante, at 3–15. Justice Kennedy’s opinion
“
assum[es]” that Ms. Din possesses that kind of liberty
interest.
Ante, at 1 (opinion concurring in judgment)
(emphasis added). I agree with Justice Kennedy’s assumption. More
than that, I believe that Ms. Din possesses that kind of
constitutional interest.
The liberty interest that Ms. Din seeks to
protect consists of her freedom to live together with her husband
in the United States. She seeks
procedural, not
substantive, protection for this freedom. Compare
Wilkinson v.
Austin, 545 U. S. 209, 221 (2005)
(Due Process Clause requires compliance with fair
procedures
when the government deprives an individual of certain “liberty” or
“property” interests), with
Reno v.
Flores, 507
U. S. 292, 302 (1993) (Due Process Clause limits the extent to
which government can
substantively regulate certain
“fundamental” rights, “no matter what process is provided”). Cf.
Smith v.
Organization of Foster Families For Equality
& Reform, 431 U. S. 816, 842, n. 48 (1977) (liberty
interests arising under the Constitution for procedural due process
pur-poses are not the same as fundamental rights requiring
substantive due process protection).
Our cases make clear that the Due Process Clause
entitles her to such procedural rights as long as (1) she seeks
protection for a liberty interest sufficiently important for
procedural protection to flow “implicit[ly]” from the design,
object, and nature of the Due Process Clause, or (2)
nonconstitutional law (a statute, for example) creates “an
expectation” that a person will not be deprived of that kind of
liberty without fair procedures.
Wilkinson,
supra, at
221.
The liberty for which Ms. Din seeks protection
easily satisfies both standards. As this Court has long recognized,
the institution of marriage, which encompasses the right of spouses
to live together and to raise a family, is central to human life,
requires and enjoys community support, and plays a central role in
most individuals’ “orderly pursuit of happiness,”
Meyer v.
Nebraska, 262 U. S. 390, 399 (1923) . See also,
e.g., Griswold v.
Connecticut, 381 U. S. 479
–486 (1965);
Zablocki v.
Redhail, 434 U. S. 374,
386 (1978) ;
Moore v.
East Cleveland, 431 U. S.
494 –503 (1977) (plurality opinion);
Smith,
supra, at
843. Similarly, the Court has long recognized that a citizen’s
right to live within this country, being fundamental, enjoys basic
procedural due process protection. See
Ng Fung Ho v.
White, 259 U. S. 276 –285 (1922);
Baumgartner v.
United States, 322 U. S. 665, 670 (1944) .
At the same time, the law, including visa law,
surrounds marriage with a host of legal protections to the point
that it creates a strong expectation that government will not
deprive married individuals of their freedom to live together
without strong reasons and (in individual cases) without fair
procedure. Cf.
Turner v.
Safley, 482 U. S. 78
–96 (1987) (noting various legal benefits of marriage); 8
U. S. C. §1151(b)(2)(A)(i) (special visa preference for
spouse of an American citizen). Justice Scalia’s response—that
nonconstitutional law creates an “expectation” that merits
procedural protection under the Due Process Clause only if there is
an unequivocal statutory right,
ante, at 11–12—is sorely
mistaken. His argument rests on the rights/privilege distinction
that this Court rejected almost five decades ago, in the seminal
case of
Goldberg v.
Kelly, 397 U. S. 254, 262
(1970) . See generally
Board of Regents of State Colleges v.
Roth, 408 U. S. 564, 571 (1972) (“[T]he Court has fully
and finally rejected the wooden distinction between ‘rights’ and
‘privileges’ that once seemed to govern the applicability of
procedural due process rights”);
id., at 572 (“In a
Constitution for a free people, there can be no doubt that the
meaning of ‘liberty’ must be broad indeed”).
Justice Scalia’s more general response—claiming
that I have created a new category of constitutional rights,
ante, at 12–15—misses the mark. I break no new ground here.
Rather, this Court has
already recognized that the Due
Process Clause guarantees that the government will not, without
fair procedure, deprive individuals of a host of rights, freedoms,
and liberties that are no more important, and for which the state
has created no greater expectation of continued benefit, than the
liberty interest at issue here. See,
e.g., Wolff v.
McDonnell, 418 U. S. 539 –557 (1974) (prisoner’s right
to maintain “goodtime” credits shortening term of imprisonment;
procedurally protected liberty interest based on nonconstitutional
law);
Paul v.
Davis, 424 U. S. 693, 701 (1976)
(right to certain aspects of reputation; procedurally protected
liberty interest arising under the Constitution);
Goss v.
Lopez, 419 U. S. 565 –575 (1975) (student’s right not
to be suspended from school class; procedurally protected liberty
interest arising under the Constitution);
Vitek v.
Jones, 445 U. S. 480 –495 (1980) (prisoner’s right
against involuntary commitment; procedurally protected liberty
interest arising under the Constitution);
Washington v.
Harper, 494 U. S. 210 –222 (1990) (mentally ill
prisoner’s right not to take psychotropic drugs; procedurally
protected liberty interest arising under the Constitution); see
generally
Goldberg,
supra, at 262–263 (right to
welfare benefits; procedurally protected property interest based on
nonconstitutional law). But cf.
ante, at 12–14 (plurality
opinion) (making what I believe are unsuccessful efforts to
distinguish these cases). How could a Constitution that protects
individuals against the arbitrary deprivation of so diverse a set
of interests not also offer some form of procedural protection to a
citizen threatened with governmental deprivation of her freedom to
live together with her spouse in America? As compared to
reputational harm, for example, how is Ms. Din’s liberty interest
any less worthy of due process protections?
II
A
The more difficult question is the nature of
the procedural protection required by the Constitution. After all,
sometimes, as with the military draft, the law separates spouses
with little individualized procedure. And sometimes, as with
criminal convictions, the law provides procedure to one spouse but
not to the other. Unlike criminal convictions, however, neither
spouse here has received any procedural protection. Cf.
Ingraham v.
Wright, 430 U. S. 651 (1977)
(availability of alternative procedures can satisfy due process).
Compare
Shaughnessy v.
United States ex rel. Mezei,
345 U. S. 206 ,213 (1953) (no due process protections for
aliens outside United States), with
Zadvydas v.
Davis, 533 U. S. 678, 693 (2001) (such protections are
available for aliens inside United States). And, unlike the draft
(justified by a classic military threat), the deprivation does not
apply similarly to hundreds of thousands of American families. Cf.
Bi-Metallic Investment Co. v.
State Bd. of Equalization
of Colo., 239 U. S. 441, 445 (1915) .
Rather, here, the Government makes
individualized visa determinations through the application of a
legal rule to particular facts. Individualized adjudication
normally calls for the ordinary application of Due Process Clause
procedures.
Londoner v.
City and County of Denver,
210 U. S. 373 –386 (1908). And those procedures normally
include notice of an adverse action, an opportunity to present
relevant proofs and arguments, before a neutral decisionmaker, and
reasoned decisionmaking. See
Hamdi v.
Rumsfeld, 542
U. S. 507, 533 (2004) (plurality opinion); see also Friendly,
Some Kind of a Hearing, 123 U. Pa. L. Rev. 1267,
1278–1281 (1975). These procedural protections help to guarantee
that government will not make a decision directly affecting an
individual arbitrarily but will do so through the reasoned
application of a rule of law. It is that rule of law, stretching
back at least 800 years to Magna Carta, which in major part the Due
Process Clause seeks to protect.
Hurtado v.
California, 110 U. S. 516, 527 (1884) .
Here, we need not consider all possible
procedural due process elements. Rather we consider only the
minimum procedure that Ms. Din has requested—namely, a statement of
reasons, some kind of explanation, as to why the State Department
denied her husband a visa.
We have often held that this kind of statement,
permitting an individual to understand
why the government
acted as it did, is a fundamental element of due process. See,
e.g., Goldberg, 397 U. S., at 267–268;
Perry v.
Sindermann, 408 U. S. 593, 603 (1972) ;
Morrissey v.
Brewer, 408 U. S. 471, 485, 489
(1972) ;
Wolff,
supra, at 563–564;
Goss,
supra, at 581;
Mathews v.
Eldridge, 424
U. S. 319 –346 (1976);
Cleveland Bd. of Ed. v.
Loudermill, 470 U. S. 532, 546 (1985) ;
Wilkinson, 545 U. S.
, at 224;
Hamdi,
supra, at 533 (plurality opinion).
That is so in part because a statement of
reasons, even one provided after a visa denial, serves much the
same function as a “notice” of a proposed action. It allows Ms.
Din, who suffered a “serious loss,” a fair “opportunity to meet”
“the case” that has produced separation from her husband. See
Joint Anti-Fascist Refugee Comm. v.
McGrath, 341
U. S. 123 –172 (1951) (Frankfurter, J., concurring); see also
Hamdi,
supra, at 533 (plurality opinion);
Wolff,
supra, at 563; Friendly,
supra, at 1280
(“notice” must provide “the grounds for” the relevant action).
Properly apprised of the grounds for the Government’s action, Ms.
Din can then take appropriate action—whether this amounts to an
appeal, internal agency review, or (as is likely here) an
opportunity to submit additional evidence and obtain
reconsideration, 22 CFR 42.81(e) (2014).
I recognize that our due process cases often
determine the constitutional insistence upon a particular procedure
by balancing, with respect to that procedure, the “private
interest” at stake, “the risk of an erroneous deprivation” absent
the sought-after protection, and the Government’s interest in not
providing additional procedure.
Eldridge,
supra, at
335; but cf.
Hamdi,
supra, at 533 (plurality opinion)
(suggesting minimal due process requirements cannot be balanced
away). Here “balancing” would not change the result. The “private
interest” is important, the risk of an “erroneous deprivation” is
significant, and the Government’s interest in not providing a
reason is nor-mally small, at least administratively speaking.
Indeed, Congress requires the State Department to provide a reason
for a visa denial in most contexts. 8 U. S. C.
§1182(b)(1). Accordingly, in the absence of some highly unusual
circumstance (not shown to be present here, see
infra, at
9), the Constitution requires the Government to provide an adequate
reason why it refused to grant Ms. Din’s husband a visa. That
reason, in my view, could be either the factual basis for the
Government’s decision or a sufficiently specific statutory
subsection that conveys effectively the same information.
B
1
Justice Kennedy, without denying that Ms. Din
was entitled to a reason, believes that she received an adequate
reason here. According to the complaint, however, the State
Department’s denial letter stated only that the visa “had been
denied under . . . 8 U. S. C. §1182(a).” App.
30. In response to requests for further explanation, the State
Department sent an e-mail stating that the visa “had been denied
under . . . 8 U. S. C. §1182 (a)(3)(B)—the
terrorism and national security bars to admissibility.”
Id.,
at 31. I do not see how either statement could count as
adequate.
For one thing, the statutory provision to which
it refers, §1182(a)(3)(B), sets forth, not one reason, but dozens.
It is a complex provision with 10 different subsections, many of
which cross-reference other provisions of law. See Appendix,
infra. Some parts cover criminal conduct that is
particularly serious, such as hijacking aircraft and assassination.
§§1182(a)(3)(B)(iii)(I), (IV). Other parts cover activity that,
depending on the factual circumstances, cannot easily be labeled
“terrorist.” One set of cross-referenced subsections, for example,
brings within the section’s visa prohibition any individual who has
“transfer[red] . . . [any] material financial benefit” to
“a group of two or more individuals, whether organized or not,
which . . . has a subgroup which engages” in “afford[ing]
material support . . . for . . . any individual
who . . . plans” “[t]he use of any . . . weapon
. . . with intent . . . to cause substantial
damage to property.” §§1182(a)(3)(B)(iv)(VI), (vi)(III),
(iv)(VI)(bb), (iii)(V). At the same time, some subsections provide
the visa applicant with a defense; others do not. See,
e.g.,
§1182(a)(3)(B)(iv)(VI)(dd) (permitting applicant to show “by clear
and convincing evidence that the actor did not know, and should not
reasonably have known, that the organization was a terrorist
organization”). Taken together the subsections, directly or through
cross-reference, cover a vast waterfront of human activity
potentially benefitting, sometimes in major ways, sometimes hardly
at all, sometimes directly, sometimes indirectly, sometimes a few
people, sometimes many, sometimes those with strong links,
sometimes those with hardly a link, to a loosely or strongly
connected group of individuals, which, through many different kinds
of actions, might fall within the broad statutorily defined term
“terrorist.” See,
e.g., Daneshvar v.
Ashcroft, 355
F. 3d 615, 628 (CA6 2004) (alleging material support for
selling newspapers);
Singh v.
Wiles, 747
F. Supp. 2d 1223, 1227 (WD Wash. 2010) (alleging material
support for letting individuals sleep on a temple floor).
For another thing, the State Department’s reason
did not set forth any factual basis for the Government’s decision.
Cf.,
e.g., Wilkinson, 545 U. S., at 225–226
(prison administrators must inform prisoners of “factual basis” for
extreme solitary confinement). Perhaps the Department denied the
visa because Ms. Din’s husband at one point was a payroll clerk for
the Afghan Government when that government was controlled by the
Taliban. See
ante, at 5 (opinion of Kennedy, J.). But there
is no way to know if that is so.
The generality of the statutory provision cited
and the lack of factual support mean that here, the reason given is
analogous to telling a criminal defendant only that he is accused
of “breaking the law”; telling a property owner only that he cannot
build because environmental rules forbid it; or telling a driver
only that police pulled him over because he violated traffic laws.
As such, the reason given cannot serve its procedural purpose. It
does not permit Ms. Din to assess the correctness of the State
Department’s conclusion; it does not permit her to determine what
kinds of facts she might provide in response; and it does not
permit her to learn whether, or what kind of, defenses might be
available. In short, any “reason” that Ms. Din received is not
constitutionally adequate.
2
Seemingly aware that he cannot deny these
basic legal principles, Justice Kennedy rests his conclusions upon
two considerations that, in his view, provide sufficient grounds
for an exception.
Ante, at 5–6. Most importantly, he says
that ordinary rules of due process must give way here to national
security concerns. But just what are those concerns? And how do
they apply here? Ms. Din’s counsel stated at oral argument that
there were no such concerns in this case. Tr. of Oral Arg. 35. And
the Solicitor General did not deny that statement.
In other cases, such concerns may exist. But,
when faced with the need to provide public information without
compromising security interests, the Government has found ways to
do so, for example, by excising sensitive portions of documents
requested by the press, members of the public, or other public
officials. See,
e.g., 5 U. S. C. §552(b)(1).
Moreover, agencies and courts have found ways to conduct
proceedings in private, through internal review or
in camera
proceedings, and thereby protect sensitive information. See
Webster v.
Doe, 486 U. S. 592, 604 (1988) ;
Brief for Respondent 48–52, and n. 20; Brief for American
Civil Liberties Union as
Amicus Curiae 23–28. Would these
(or other) methods prove adequate in other cases where a citizen’s
freedom to live in America with her spouse is at issue? Are they
even necessary here? The Government has not explained.
I do not deny the importance of national
security, the need to keep certain related information private, or
the need to respect the determinations of the other branches of
Government in such matters. But protecting ordinary citizens from
arbitrary government action is fundamental. Thus, the presence of
security considerations does not suspend the Constitution.
Hamdi, 542 U. S.
, at 527–537 (plurality
opinion). Rather, it requires us to take security needs into
account when determining, for example, what “process” is “due.”
Ibid.
Yet how can we take proper account of security
considerations without knowing what they are, without knowing how
and why they require modification of traditional due process
requirements, and without knowing whether other, less restrictive
alternatives are available? How exactly would it harm important
security interests to give Ms. Din a better explanation? Is there
no way to give Ms. Din such an explanation while also maintaining
appropriate secrecy? I believe we need answers to these questions
before we can accept as constitutional a major departure from the
procedural requirements that the Due Process Clause ordinarily
demands.
Justice Kennedy also looks for support to the
fact that Congress specifically exempted the section here at issue,
§1182(a)(3)(B), from the statutory provision requiring the State
Department to provide a reason for visa denials. §1182(b)(3). An
exception from a statutory demand for a reason, however, is not a
command to do the opposite; rather, at most, it leaves open the
question whether other law requires a reason. Here that other law
is the Constitution, not a statute. In my view, the Due Process
Clause requires the Department to provide an adequate reason. And,
I believe it has failed to do so.
* * *
For these reasons, with respect, I
dissent.
APPENDIX
Title 8 U. S. C. § 1182(a)(3)
provides:
“
(B) Terrorist activities
“
(i) In general
“Any alien who—
“(I) has engaged in a terrorist activity;
“(II) a consular officer, the Attorney General,
or the Secretary of Homeland Security knows, or has reasonable
ground to believe, is engaged in or is likely to engage after entry
in any terrorist activity (as defined in clause (iv));
“(III) has, under circumstances indicating an
intention to cause death or serious bodily harm, incited terrorist
activity;
“(IV) is a representative (as defined in clause
(v)) of—
“(aa) a terrorist organization (as defined in
clause (vi)); or
“(bb) a political, social, or other group that
endorses or espouses terrorist activity;
“(V) is a member of a terrorist organization
described in subclause (I) or (II) of clause (vi);
“(VI) is a member of a terrorist organization
described in clause (vi)(III), unless the alien can demonstrate by
clear and convincing evidence that the alien did not know, and
should not reasonably have known, that the organization was a
terrorist organization;
“(VII) endorses or espouses terrorist activity
or persuades others to endorse or espouse terrorist activity or
support a terrorist organization;
“(VIII) has received military-type training (as
defined in section 2339D(c)(1) of title 18) from or on behalf of
any organization that, at the time the training was received, was a
terrorist organization (as defined in clause (vi)); or
“(IX) is the spouse or child of an alien who is
inadmissible under this subparagraph, if the activity causing the
alien to be found inadmissible occurred within the last 5
years,
“is inadmissible. An alien who is an officer,
official, representative, or spokesman of the Palestine Liberation
Organization is considered, for purposes of this chapter, to be
engaged in a terrorist activity.
“
(ii) Exception
“Subclause (IX) of clause (i) does not apply to
a spouse or child—
“(I) who did not know or should not reasonably
have known of the activity causing the alien to be found
inadmissible under this section; or
“(II) whom the consular officer or Attorney
General has reasonable grounds to believe has renounced the
activity causing the alien to be found inadmissible under this
section.
“
(iii) ‘Terrorist activity’ defined
“As used in this chapter, the term ‘terrorist
activity’ means any activity which is unlawful under the laws of
the place where it is committed (or which, if it had been committed
in the United States, would be unlawful under the laws of the
United States or any State) and which involves any of the
following:
“(I) The highjacking or sabotage of any
conveyance (including an aircraft, vessel, or vehicle).
“(II) The seizing or detaining, and threatening
to kill, injure, or continue to detain, another individual in order
to compel a third person (including a governmental organization) to
do or abstain from doing any act as an explicit or implicit
condition for the release of the individual seized or detained.
“(III) A violent attack upon an internationally
protected person (as defined in section 1116(b)(4) of title 18) or
upon the liberty of such a person.
“(IV) An assassination.
“(V) The use of any—
“(a) biological agent, chemical agent, or
nuclear weapon or device, or
“(b) explosive, firearm, or other weapon or
dangerous device (other than for mere personal monetary gain),
“with intent to endanger, directly or
indirectly, the safety of one or more individuals or to cause
substantial damage to property.
“(VI) A threat, attempt, or conspiracy to do
any of the foregoing.
“
(iv) ‘Engage in terrorist activity’
defined
“As used in this chapter, the term ‘engage in
terrorist activity’ means, in an individual capacity or as a member
of an organization—
“(I) to commit or to incite to commit, under
circumstances indicating an intention to cause death or serious
bodily injury, a terrorist activity;
“(II) to prepare or plan a terrorist
activity;
“(III) to gather information on potential
targets for terrorist activity;
“(IV) to solicit funds or other things of value
for—
“(aa) a terrorist activity;
“(bb) a terrorist organization described in
clause (vi)(I) or (vi)(II); or
“(cc) a terrorist organization described in
clause (vi)(III), unless the solicitor can demonstrate by clear and
convincing evidence that he did not know, and should not reasonably
have known, that the organization was a terrorist organization;
“(V) to solicit any individual—
“(aa) to engage in conduct otherwise described
in this subsection;
“(bb) for membership in a terrorist
organization described in clause (vi)(I) or (vi)(II); or
“(cc) for membership in a terrorist
organization described in clause (vi)(III) unless the solicitor can
demonstrate by clear and convincing evidence that he did not know,
and should not reasonably have known, that the organization was a
terrorist organization; or
“(VI) to commit an act that the actor knows, or
reasonably should know, affords material support, including a safe
house, transportation, communications, funds, transfer of funds or
other material financial benefit, false documentation or
identification, weapons (including chemical, biological, or
radiological weapons), explosives, or training—
“(aa) for the commission of a terrorist
activity;
“(bb) to any individual who the actor knows, or
reasonably should know, has committed or plans to commit a
terrorist activity;
“(cc) to a terrorist organization described in
subclause (I) or (II) of clause (vi) or to any member of such an
organization; or
“(dd) to a terrorist organization described in
clause (vi)(III), or to any member of such an organization, unless
the actor can demonstrate by clear and convincing evidence that the
actor did not know, and should not reasonably have known, that the
organization was a terrorist organization.
“
(v) ‘Representative’ defined
“As used in this paragraph, the term
‘representative’ includes an officer, official, or spokesman of an
organization, and any person who directs, counsels, commands, or
induces an organization or its members to engage in terrorist
activity.
“
(vi) ‘Terrorist organization’
defined
“As used in this section, the term ‘terrorist
organization’ means an organization—
“(I) designated under section 1189 of this
title;
“(II) otherwise designated, upon publication in
the Federal Register, by the Secretary of State in consultation
with or upon the request of the Attorney General or the Secretary
of Homeland Security, as a terrorist organization, after finding
that the organization engages in the activities described in
subclauses (I) through (VI) of clause (iv); or
“(III) that is a group of two or more
individuals, whether organized or not, which engages in, or has a
subgroup which engages in, the activities described in subclauses
(I) through (VI) of clause (iv).”