The Doctrine of Consular Nonreviewability in the Travel Ban Cases: Kerry v. Din Revisitied
Written By: Desiree C. Schmitt
When ruling on the recent Travel Ban Cases, the U.S. Supreme Court and judges of the Fourth and Ninth Circuit Courts were required to consider the question of justiciability and reviewability. To answer these questions, the judges turned to the Doctrine of Consular Nonreviewability and Justice Kennedy’s concurring opinion in the U.S. Supreme Court decision Kerry v. Din (2015). Interestingly, the lower-court judges interpret both the doctrine and Kennedy’s concurrence in different ways, and so have begun to define the scope of the Doctrine of Consular Nonreviewability, thereby interpreting the crucial Mandel test1 distinctively, too. Several questions arise from the Travel Ban Cases. First, it must be asked if they can be seen as appropriate application cases of the Consular Nonreviewability Doctrine. If the proposed executive action was properly addressed by the courts, it must then be deter-mined which judge(s) had the correct reading of Kennedy’s concurrence in Kerry v. Din and the precise interpretation of the Mandel test. To answer these questions, the paper takes account of the Doctrine of Consular Nonreviewability, its “cousin” the Plenary Power Doctrine, Kerry v. Din and the Travel Ban Cases.
Continue Reading The Doctrine of Consular Nonreviewability in the Travel Ban Cases