“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties.
In a May 2019 case called Yafai v. Pompeo, the four Trump judges on the Seventh Circuit provided the deciding votes preventing en banc reconsideration of a misguided 2018 panel ruling empowering arbitrary denial of a visa to the spouse of a United States citizen. The panel ruling had been authored by Amy Coney Barrett.
A U.S. consular official in Yemen denied a visa to Zahoor Ahmed, who was married to U.S. citizen Mohshin Yafai. The official “explained” the denial with a short statement that she had tried to smuggle children into the United States. He provided no evidence to support his accusation, and the couple submitted clear evidence contradicting it, but the denial stood.
Yafai sued, asserting that the unwarranted prohibition of his ability to live in America with his wife violated his constitutional rights. Over a vigorous dissent by senior Judge Kenneth Ripple (a Reagan nominee), Barrett’s opinion stated that federal courts lack the authority to hear Yafai’s case under a Supreme Court doctrine called the “consular non-reviewability doctrine.” But as Judge Ripple pointed out, that doctrine has been applied only when the consular office has provided at least some evidence to support its alleged justification.
In May 2019, the circuit court voted 8-3 to deny en banc review. All four Trump nominees voted with the majority. Two of them filled vacancies that existed only because Senate Republicans obstructed President Obama’s highly qualified nominees for those judgeships. How Don Schott and Myra Selby would have voted cannot be known with any certainly, but nothing in their record suggested a willingness to allow the denial of a constitutional right based on a consular official’s arbitrary whim without any judicial review.
Judge Barrett wrote a statement defending the denial of en banc review, arguing that as long as the consular official cites a statute or regulation as the basis of the denial, the decision cannot be reviewed by courts. Chief Judge Diane Wood wrote a powerful dissent (which was joined by Judges Ilana Rovner—a George H.W. Bush nominee—and David Hamilton) demonstrating that courts have required officials to do more than simply cite a law and stop there:
[B]y holding that we are compelled to leave unexamined the government’s no-admissibility determination, the panel has wiped out our ability to vindicate any constitutional claims brought by a U.S. citizen affected by a visa denial. No matter whether a citizen is attempting to unify his family, asserting a First Amendment right to hear the views of a foreign national, or seeking redress for some other constitutional injury, the rights in question are illusory if courts have no power to protect them from the Executive’s arbitrary and capricious decision-making. [emphasis in original, internal citation omitted]
Judge Wood recognized the grave danger to our country under a system in which judges meekly defer to whatever unsupported claims the executive branch might make:
At its root, due process requires that the person subject to a governmental action be given enough information to be able to know what the accusation against her is. A regime in which the consular official can just say “no,” and the U.S.-citizen spouse must guess both about the accusation that supposedly supported that decision and—critically—what facts lay behind the “no,” is not worthy of this country.
Indeed, all of our rights depend on having a judicial system that is worthy of this country.