RECENT RULINGS

The Fifth Amendment to the United States Constitution provides, in part, that “No person shall be . . . deprived of life, liberty, or property, without due process of law. . ..” In Department of State v. Munoz, decided on June 21, 2024, the Court ruled that the American spouse of a foreign national had no rights under the Due Process Clause to challenge a State Department Consul’s denial of the foreign national’s application for a visa to re-enter the United States. The Court ruled that the couple’s marriage to each other did not give the American spouse a “fundamental right” to question, in a court-of-law, the State Department’s denial of her husband’s entry-visa application. The vote on the Court was 5-3, with one other Justice agreeing only with the majority’s concluding order to dismiss the American spouse’s case. Justices Sotomayor, Kagan, and Jackson dissented from both the ruling of the Court, and its conclusion that will require the dismissal of the case. The dissenting Justices argued that the denial of a spouse’s application to re-enter the United States infringed on the American spouse’s “fundamental right” to marry, and to co-habit with her husband inside the United States.[1] The dissenting Justices argued that the infringement of that “fundamental right” entitled the American spouse to challenge her husband’s visa denial as a violation of the  Due Process Clause. The Court majority rejected their argument.

Comment: Neither the Court’s so-called “fundamental rights” doctrine, nor its “substantive due process” doctrine has any textual basis in the United States Constitution. The Court’s entire canon of precedents recognizing those untextual doctrines should be overruled, because they are patently inconsistent with the founding ideal of the United States, that legitimate government has to be based on the “consent of the governed.”[2] In this case, the Court decided not to overrule Obergefell v. Hodges,[3] but to limit that case’s “fundamental rights” ruling to the facts of that case, which did not involve a foreign national’s visa application to rejoin his wife in the United States.  

Dan Rhea

[1] See Obergefell v. Hodges, 576 U.S. 644 (2014).

[2] See The Declaration of Independence, July 4, 1776.

[3] 576 U.S. 644 (2014).