The Four Shameful Sources of the Doctrine of Consular Non-Reviewability

In recent weeks, the right-wing of the federal appellate court system has further elaborated its theory that a U.S. citizen has no right to sue the executive branch when the denial of their immigrant spouse’s visa results in the effective break up of their marriage. According to this theory (called the “doctrine of consular non-reviewability") the courts have no power to review visa denials to ensure the executive branch is complying with the Bill of Rights.

Recent developments in the federal courts of appeals make clear that there are essentially four historical-legal sources for this immense arrogation of unreviewable executive power. These are: (1) the Alien and Sedition Acts of 1798, (2) the Page Act of 1875 banning migration of Chinese women on the grounds they were prostitutes, (3) the Chinese Exclusion Act of 1882, and (4) the Quota Act of 1921, which established racial quotas for immigration.

A 1886 Anti-Chinese political cartoon from The George Dee Magic Washing Machine Company depicting the Chinese Exclusion Act.

This argument was elaborated in a June 23 decision by a panel of the D.C. Circuit in Colindres v. State Dep’t. In the Colindres case, the court ruled that a U.S. citizen wife of an immigrant husband could not ask for judicial review of her husband’s visa denial, even where the State Department provided no explanation for the denial except to say a consular officer believed he would enter the country to engage in “any other unlawful activity.”

The Colindres opinion was written by Trump-appointee Justin R. Walker and joined by George H.W. Bush appointee A. Raymond Randolph, known for authoring opinions holding that the Geneva Convention and right to habeas corpus did not apply to prisoners at Guantanamo Bay. (Both were overturned by the U.S. Supreme Court).

In Colindres, the D.C. Circuit held that the U.S. citizen wife’s right to marriage is not implicated by the denial of her spouse’s application to enter to the country because “history and practice cut against Mrs. Colindres’ claim that she has a ‘marital right’ to live in America with her husband.”

As evidence, Walker elaborated the four sources upon which this conclusion and the broader doctrine of consular non-reviewability are based.

First, Walker cites the Alien and Sedition Act of 1798 to argue that “from the Founding, the government has had discretion to control entry into the United States.”

Second, Walker cites “the Page Act of 1875” which he said “gave consuls at ports in Asia discretion to deny permission to come to the United States to any immigrant who ‘had entered into a contract or agreement for a term of service within the United States for lewd and immoral purposes.’”

Third, Walker cites the Immigration Act of 1882 which he says “likewise limited spousal immigration,” and fourth, he cites “the Emergency Quota Act of 1921” for the proposition that “when Congress started to impose numerical limitations on immigration in 1921, those limits applied to citizens’ spouses.” He concludes, “to sum up, from early federal immigration legislation to today, Congress has sometimes limited spousal immigration.”

None of these sources are a legitimate source of legal authority for immigration policy in the 21st century.

Source One: The Alien and Sedition Act of 1798

Regarding the first source, the Alien and Sedition Acts constitute among the most egregious violations of the Bill of Rights in U.S. history. The Supreme Court in Trump v. Hawaii repudiated past executive action based on the act as anti-canonical. The 1944 Supreme Court decision Korematsu v. United States upheld Executive Order 9066, which cited the 1798 Alien Act as its source of authority, and in 2018 Chief Justice Roberts wrote that “Korematsu was gravely wrong the day it was decided” and “has no place in law under the Constitution.”

Source Two: The Page Act of 1875

Regarding the second source, the Page Act of 1875 was “an attempt to prevent Chinese women in general form immigrating to the United States,” as Professor Kerry Abrams explains. Congress’ explicit aim in passing the Act was to prevent the birth of children to Chinese parents who would then be entitled to birthright citizenship under the recently-ratified Fourteenth Amendment.

A statement in the congressional record from California Congressman William Higby gives a taste of the “legal” arguments upon which the D.C. Circuit relies for authority in 2023:

“Judging from the daily exhibition in our street, and the well-established repute among their females, virtue is an exception to the general rule. They buy and sell their women like cattle, and the trade is mostly for the purpose of prostitution. That is their character. You cannot make citizens of them.”

Professor Abrams cites “the threat of reproduction” as a primary impetus behind the passage of the Page Act. Quoting a Congressional Committee report from 1876, Professor Abrams explains, “As long as Chinese men migrated alone, the argument went, they would eventually return home…Chinese immigrants must be denied citizenship, the argument went, because the ‘Mongolian race seems to have no desire for progress’” and “denying the ballot to this ‘servile class’ was ‘a necessary means to public safety.’”

The D.C. Circuit panel decision is forced to acknowledge that “Though the Act was designed to stop prostitutes emigrating, consuls unfortunately treated it as a general restriction of Chinese female immigration.” The decision weakly attempts to justify itself, adding, “Our point is not to endorse the Act's policy or application, but simply to note that the Act did not include an exception for spouses and made no provision for judicial review of consuls' decisions.”

But as Professor Abrams points out, the reason the Page Act did not include such an exception was because the act was explicitly aimed at “exclud[ing] a group of people by defining them as outside the boundaries of legal marriage.” The D.C. Circuit cannot side step the fact that they are endorsing the legal legitimacy of a law based on extreme racial animus which treated all Chinese women as prostitutes in order to prevent Chinese children from being born on US soil and acquiring citizenship.

“The Chinese Must Go, But Who Keeps Them?” – 11 May 1878 by George Frederick Keller for The San Francisco Illustrated Wasp. UC Berkeley – The Bancroft Library

Sources Three and Four: Chinese Exclusion Act of 1882 and Emergency Quota Act of 1921

The third and fourth sources for the doctrine of consular non-reviewability—the Chinese Exclusion Act of 1882 and the Emergency Quota Act of 1921—also fall under the category of notorious anti-canon. Anti-imperialist Massachusetts Senator George Frisbie Hoar called the Chinese Exclusion Act “nothing less than the legalization of racial discrimination,” and the Quota Act of 1921 was initially drafted by Representative Albert Johnson, who was soon to become president of the Eugenics Research Association. In 2021 Professor Reece Jones marked the centennial of the Quota Act in a Washington Post perspective, noting:

"As Congress debated increasing immigration restrictions in April 1921, Secretary of State Charles Evans Hughes submitted a report from U.S. diplomats in Europe on who was planning to migrate. The report warned of 'Jews of an undesirable type' and 'Armenians, Jews, Persians, and Russians' who 'cannot be regarded as desirable populations for any country.' It concluded that 'our restriction on immigration should be so rigid that it would be impossible for most of those people to enter the United States.'"

These are the “histories and practices” which the D.C. Circuit says “cut against Mrs. Colindres’ claim she has a marital right to live in America with her husband.”