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Right-Wing Supremes Mimic GOP as They Use Immigration Cases to Lay Groundwork for Broader Attacks on Individual Rights

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Department of State v. Muñoz is the latest example for not relying on the Court as the backstop for our rights

Written by attorney David Leopold

Immigration is the vehicle that Republicans are using to undermine rights across the country on many issues, including elections and voting rights. The Republicans on the Supreme Court in  Department of State v. Muñoz used an immigration case to launch an attack on marriage rights. This shouldn’t have been a complicated case. But, the right-wingers, led by Justice Amy Coney Barrett, took what should have been simple and expanded it far beyond to lay the groundwork to undermine hard-fought civil rights and liberties.

This case is further evidence that the courts have been severely compromised by the right.

Sandra Muñoz, a U.S. citizen, sponsored her husband, Luis Asencio-Cordero, a citizen of El Salvador, for a green card.  When he applied for his green card at the U.S. embassy in San Salvador, the U.S. consular officer refused his immigrant visa, citing a provision of the law that excludes from the U.S. anyone who the consular officer “has reasonable ground to believe” will engage in criminal activity in the U.S.  This, despite the fact that Mr. Asencio-Cordero had lived in the U.S. for many years and had no criminal record either in the U.S. or in El Salvador.  As both Justice Sotomayor and Gorsuch pointed out, Ms. Muñoz sued for further explanation as to why her husband was being excluded. The government eventually gave her the information and, therefore, an opportunity to reapply for her husband’s admission to the U.S. with the understanding of why the government denied the first application. That, Justice Gorsuch wrote, “should end this case.” 

Instead, the conservative majority led by Justice Amy Coney Barrett used the case as an opportunity to weaken the right to marriage by ruling that the constitution does not guarantee a U.S. citizen the right to have her husband live with her in the U.S.; declaring unequivocally, “A citizen does not have a fundamental liberty interest in her noncitizen spouse being admitted to the country.”

Judicial restraint?  Not so much when it comes to furthering a conservative political agenda.  

Indeed, the Court’s gratuitous declaration that a U.S. citizen has no constitutional right to live with their spouse in the U.S. has far-reaching implications for U.S. citizens who cannot join their excluded spouses in their home countries.  Justice Sonia Sotomayor used her strong dissent to make several key points. She laid out how difficult it is for U.S. citizens to obtain legal protections for their non-citizen spouses, an issue that came to the forefront last week when President Biden announced a new policy to keep families together. She wrote:

Marriage is not an automatic ticket to a green card. A married citizen-noncitizen couple must jump through a series of administrative hoops to apply for the lawful permanent residency that marriage can confer. Noncitizen spouses coming from abroad must apply for a visa to enter the United States. In certain cases, however, the law requires even couples who meet and marry in the United States to send the noncitizen spouse back to his country of origin to do the same thing. In doing so, the couple must take an enormous risk to pursue the stability of lawful immigration status: the risk that when the noncitizen spouse tries to reenter the United States, he will face unexpected exile. 

Sotomayor also made it clear that the ruling weakens the rights of same-sex couples as recognized in Obergefell v Hodges, as well as other couples where a spouse is denied admission to the U.S.  “Same-sex couples,” Sotomayor warned, “may be forced to relocate to countries that do not recognize same-sex marriage or even those that criminalize homosexuality. American husbands may be unable to follow their wives abroad if their wives’ countries do not recognize derivative immigration status from women (as was the case in this country for many years)…The majority’s failure to respect the right to marriage in this country consigns U.S. citizens to rely on the fickle grace of other countries immigration laws to vindicate one of the ‘basic civil rights of man’ and live alongside their spouses.”

Legal analyst Mark Joseph Stern dove into the case with his colleague, Dahlia Lithwick, on Slate’s Amicus podcast:  “the majority ruled against Muñoz. Barrett wrote that, no, you do not have a right to be given the reason for your spouse’s visa denial. The majority could have stopped there, but it didn’t. Instead, for the first time ever, it held that there is, in fact, no liberty interest under the Constitution for an American citizen “to live with her spouse in her country of citizenship.” The State Department could do anything it wanted because there was no constitutional right at play.”

When Lithwick noted, “Justice Gorsuch has an uncharacteristically restrained, un-Gorsuch-y concurrence saying his conservative colleagues didn’t need to get that far.” Stern replied, “That’s exactly right, because the government has already given Muñoz the reason it denied the visa. He added, “Gorsuch says, basically, ‘I don’t understand why the majority keeps going when Ms. Muñoz has already gotten the relief she sought.’ She would be free to seek the visa again. But the majority was hungry to go further, as Justice Sotomayor said in her dissent. The majority wanted to cut back the constitutional right to marry, so it weaponized this case as a cudgel against that right, rather than practicing judicial restraint.” Stern’s point here should be the massive warning sign for the path ahead.  

The Muñoz decision is the product of an extremist Court that no longer even pretends to abide by the doctrine of judicial restraint.  Instead, as they did in Dobbs v. Jackson Women’s Health Organization, where they extinguished a woman’s right to control her body, the right wing extremists on the Supreme Court have eschewed the law in favor of a right wing political agenda. As so many of their GOP colleagues do, those Justices used immigration as a tool to expand their attacks on individual rights.