Felicia Ellsworth: Welcome to “In the Public Interest” from WilmerHale, an international law firm at the intersection of government, technology and business. Thank you for joining us. I’m Felicia Ellsworth.
Michael Dawson: And I’m Michael Dawson. Today’s episode is the latest installment in our second annual Supreme Court miniseries, where we dive into the most hotly contested decisions coming out of the Supreme Court this term and discuss the implications of the Court’s rulings going forward.
Felicia Ellsworth: For today’s episode, we will be discussing the Supreme Court’s recent decision in Department of State versus Muñoz, a case concerning the due process rights of U.S. citizens whose non-citizen spouses are denied admission to the United States. On June 21st, the Supreme Court handed down its opinion in the case—six to three in favor of the State Department and against the plaintiff, with the three Democrat appointed justices dissenting.
Joining me to talk about this decision is Lee Greenfield. Lee is a partner in our Washington, DC Office who specializes in complex antitrust matters. He’s a frequent writer and commentator on antitrust issues and is editorial chair of the Antitrust Law Journal. Lee has been recognized by a plethora of trusted organizations and publications for his legal expertise. To name just a few, Chambers and Partners, named as a Thomson Reuters Standout Lawyer, Best Lawyers, a Washington DC Super lawyer, and a Law Dragon 500 Leading Global Litigator. Of note for this discussion, Lee helped lead the team of Wilmer Hale lawyers, who filed an amicus brief in support of Sandra Muñoz on behalf of 35 members of Congress. Thank you so much, Lee, for being a part of this week’s episode of our Supreme Court miniseries.
Lee Greenfield: It’s great to be here, Felicia.
Felicia Ellsworth: Let’s start off with a little background on the case. As I said, this case involved Sandra Muñoz, a U.S. citizen, who also happens to be a celebrated workers rights lawyer in California, and her husband, Luis Asencio-Cordero, a Salvadoran citizen. When they were married in 2010, Mr. Asencio-Cordero had been living in the United States for several years, and they also have a child together who is a U.S. citizen. In 2013, the couple initiated the formal marital immigration process. After the Department of Homeland Security conducted its required background checks, it determined that Mr. Asencio-Cordero did not pose a risk to national security, and everything seemed to be going as planned. However, in 2015, when Mr. Asencio-Cordero traveled back to El Salvador for his visa interview, the US consulate in El Salvador denied the application. That was almost 10 years ago. So Lee, can you give us a brief overview of what’s happened since 2015 and why we’re sitting here today?
Lee Greenfield: What happened was an interesting procedural context. Miss Muñoz filed a lawsuit on her own behalf, claiming that the consulate’s refusal to provide an explanation for her husband’s visa denial was an impairment of her Fifth Amendment rights to liberty, thus requiring, as a matter of due process, an explanation of why her husband’s visa was denied. She actually wasn’t arguing that the visa had to be granted. She was arguing that she was entitled to an explanation of the denial of the visa.
There was a district court litigation. In that litigation, the consulate wound up explaining that her husband’s denial was based on a concern at the consulate that her husband would purportedly be likely to engage in illegal activities in the United States, because he was supposedly suspected to be a member of the MS-13 gang. And the reason[s] why they claimed he was likely a member of the MS-13 gang were largely certain tattoos that he had, in addition to some responses that they claimed created suspicion during his interview at the consulate in San Salvador. The district court wound up granting summary judgment to the consulate and there was an appeal to the 9th Circuit. And what the 9th Circuit found is that there is a right to marriage that was established by Obergefell, among other decisions, and that it was an impairment of Miss Muñoz’s right to marriage to not be able to live in the country of her citizenship with her husband, and that this did create a right under the due process clause to have an explanation from the consulate of the basis for her husband’s denial of visa. So, this decision from the 9th Circuit was appealed to the Supreme Court, which granted cert, and that’s how we wound up at the Supreme Court.
Felicia Ellsworth: So that’s interesting. The original request by Miss Muñoz was really just for the explanation and then ultimately the litigation took on a life of its own as sometimes these things do and turned into a broader question about rights and due process in the 5th Amendment. Is that fair?
Lee Greenfield: Yeah. That’s fair. And, actually, the fact that there was the explanation of the district court became an interesting bone of contention when the case got to the Supreme Court. The majority, with Justice Barrett writing, said that there is, in fact, no liberty interest in living in the country of one’s citizenship with one’s spouse. It refused to extend the notion of a liberty interest on marriage to a right to live with one’s spouse in the United States. And, essentially, Justice Barrett said that that really cuts off the analysis before you get to any question of whether the denial of information about the basis for denying the visa created a due process problem.
Interestingly, Justice Gorsuch concurred and said that there really was no reason to reach the constitutional issue here because, as we said, in the district court, the consulate did provide the explanation for the denial of the visa. So, he said he would not have reached the constitutional issue at all.
And then, very interestingly, Justice Sotomayor, writing for the dissent, said that she actually agreed with Justice Gorsuch, that there was no need for the majority to reach the constitutional issue; that this case could have been decided as essentially moot because Miss Muñoz had effectively received the relief she was looking for by way of an explanation of the visa denial. Justice Sotomayor and the other dissenters would have found a liberty interest in having one’s spouse live with one in the country of one’s citizenship and believe that that was a natural consequence of the liberty interest in the right to marriage. So, strongly disagreed with Justice Barrett on that point.
Felicia Ellsworth: And I think that’s one of the things that’s so interesting about this case, right, is that it really does start to implicate this question that people have raised post-Dobbs of some of the other decisions that were sort of sewn from the same cloth as Roe. Where do they stand? Obergefell being an obvious one. And we know that marriage has been declared a fundamental right under the Constitution even before Obergefell and the question of how far that right extends is, of course, one that Obergefell tackled. But this case was an opportunity to either extend it further or not. Can you talk a little bit about how you see the kind of doctrine of the fundamental right of marriage, how you see it faring after this case with all these different decisions that talked about whether the Court should have even gone there in this particular matter?
Lee Greenfield: Yeah, I think there was a real reading between the lines aspect of this case where the dissent, I think is very concerned that we’ll see other fundamental rights cabined in a way that reduces their breadth in important ways. Justice Sotomayor, she was concerned, coming out of the Dobbs decision on abortion, that the Supreme Court was going back on a statement it had made in that decision—that the decision on the right to abortion would not undermine other rights that the Court had found, such as the right to reside with relatives and the right to make educational decisions about the education of one’s children. The majority here had failed at the first pass, as she put it, because she saw this decision as a significant watering down of the liberty interest under the Fifth Amendment in marriage, which the Court had found in Obergefell. So, she really saw this as not only wrong on the merits on an issue that the majority shouldn’t have reached out to decide, but also a harbinger of a risk of further watering down of established constitutional rights in cases to come.
Felicia Ellsworth: So let’s shift gears for a minute. You’re an antitrust scholar, and apparently one who moonlights as a constitutional law scholar. Can you talk a little bit about how you and the WilmerHale team got involved in this case, and who did we represent in filing amicus brief in support of Miss Muñoz’s position?
Lee Greenfield: Yeah. One of the things that was really cool for me about this case, and I often have experiences at the firm, is, despite being in my own little antitrust world, I get a lot of chances to go beyond my areas of specialty and contribute in other ways. So here, we were asked by an immigration organization to help with drafting a brief on behalf of 35 members of Congress. I should say that I was supervising this, but I had a great team of more junior people working with me. Julie Aust Welly, Justin Metz, and Courtney Bibbs really worked very hard on this and drafted a great brief. And what the 35 House members were very interested in doing was making sure that the Court knew about the real-world experiences that they have in getting involved in immigration issues, particularly visa issues, and working on behalf of their constituents in, you know, these often knotty, sometimes Kafkaesque experiences that their constituents go through. So, they really were making a few major points that we supported them in drafting the brief.
First of all, they made the point that just for purposes of being an effective member of Congress and providing effective constituent service, that they need to have access to the reasons why a visa was denied so that they can advocate and explore issues on behalf of their constituents effectively with the immigration authorities.
The second point they made was a very interesting separation of powers point. They argued, and we argued for them in the brief, that if one is not able to get access to information about a visa denial as a member of Congress, they’re not able to provide effective oversight of the executive branch’s administration of the immigration process system and that would impair the congressional oversight function of the executive branch in this area. Another point they made from a separation of power standpoint is that they need this type of information to be able to work to improve the executive branch’s visa handling procedures. They talked about in the brief that they often interact with the executive branch, in this case the State Department and consulates, to help them understand where there have been failings in their system. That they can’t get access to information about visa denials, they’re much less effective in being able to help improve executive branch procedures.
The last point they made in the brief is that it’s very important that when the courts are purporting to defer to Congress, like the majority did in this case when the majority spoke in terms of a normal presumption that denials of visa are not reviewable and purported to defer to congressional intent on that issue, the 35 members that we were representing said, wait a second, we like it when there’s deferral to Congress, but deferral to Congress should be based on a proper understanding of congressional action. And, in this case, with this statute, the INA Act, Congress did not intend to deny review of visa denials. So, from their perspective, they really wanted to set the record straight on that point, along with making their points about congressional oversight and constituent service.
Felicia Ellsworth: Well, and of course with all of the recent Supreme Court decisions on the executive power and the administrative state, we’ll see how any of that dovetails with some of the questions that were raised by Muñoz. Let me ask a question that is somewhat related both to this case and to the administrative state issue, which is, I understand that President Biden announced an executive order relatively recently, maybe right around the same time as the decision, that effectively would allow spouses of citizens the method for gaining access to citizenship. Do you have any predictions or hope for whether the problem that was not solved by this decision may be addressed by the political branches?
Lee Greenfield: Yeah. I think as I read, that executive order might help half a million spouses of citizens be able to stay in this country. I think one thing that remains to be seen is to the extent that order is challenged in court, how it comes out of the judicial process. You know, it’s interesting that we’ve been seeing a lot of decisions this term enhancing executive branch powers. Maybe on the other hand, we’ve been seeing a fair number of decisions over the last several years sort of paring back on some of the executive orders, but I think they’re sometimes a reaction to frustration with Congress’s inability to act in some of these areas.
Felicia Ellsworth: So last question for you, Lee. Why did you get involved in this case? What was interesting to you about the issues presented in the case or the issues that our clients, the 35 members of Congress, wanted to advance?
Lee Greenfield: Well, first of all, you know, for an antitrust lawyer, I’m a little bit of an appellate lawyer. I’m actually married to an appellate lawyer, and I’ve worked on probably six or seven antitrust appeals, including the Supreme Court, over the last five or six years. So, I always find it interesting and kind of a chance to flex some different muscles to get involved in an appeal. I thought this was a good cause. I thought it was a very interesting opportunity to actually do a brief on behalf of 35 members of Congress. And, finally and as importantly, we’ve got just a fantastic group of younger folks at the firm, and I’m always interested in finding ways that I can work with them sometimes on matters that are outside my normal fare. So there were a lot of reasons in drafting the brief.
Felicia Ellsworth: Well, super interesting case. Really interesting commentary from you, Lee. Thank you so much for joining us on the podcast in the Supreme Court miniseries. We appreciate it.
Lee Greenfield: Thank you, Felicia. It was my pleasure.
Felicia Ellsworth: Thank you, everyone listening, for tuning in to this episode of “In the Public Interest.” We hope you’ll join us for our next episode. If you enjoyed this podcast, please take a minute to share with a friend and subscribe, rate and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please e-mail them to us at [email protected].
Michael Dawson: For our WilmerHale alumni in the audience, thank you for listening. We are really proud of our extended community, including alumni in government, the nonprofit space, academia, other firms and leadership positions in corporations around the world. If you haven’t already, please join our recently launched Alumni Center at alumni.wilmerhale.com so we can stay better connected.
Our show today was produced by Shanelle Doher, with additional support from Melda Gurakar, and sound engineering and editing by Bryan Benenati, marketing by Emily Freeman and her team, all under the leadership of executive producer Sydney Warren and Jake Brownell. Thank you for listening.
Felicia Ellsworth: See you next time on “In the Public Interest.”
