Government lawyers argue to dismiss suit over travel ban policy

SAN FRANCISCO -- U.S. Department of Justice attorneys repeatedly returned to the inability of the federal judiciary to review visa decisions at American consulates abroad during oral arguments in a case stemming from the administration's "travel ban" policy barring nationals from several predominantly Muslim nations entry to the U.S.

The case centered on whether a waiver program to allow people who would be otherwise subject to the ban was a "sham," as the plaintiffs put it, and whether it was a matter of internal policy that no waivers should be granted.

But government attorneys, including DOJ Special Counsel August Flentje, argued the case touched on individual consular decisions and was therefore immune from review under what is known as the doctrine of consular non-reviewability. Emami v. Nielsen, 18-CV01587 (N.D. Cal., filed March 13, 2018).

"This case is strange," Flentje said during the arguments over whether the case should be dismissed outright by U.S. District Judge James Donato. "Normally when someone asks for a visa and is denied, they would sue, but consular non-reviewability prevents that."

In many ways, it was not a surprising strategy given recent immigration litigation under the Trump administration.

The administration has often argued for broad, non-reviewable presidential authority over immigration matters, with varying degrees of success. Perhaps its biggest victory came at the U.S. Supreme Court this year when the justices narrowly upheld the travel ban policy in a 5-4 vote.

The high court recognized the broad constitutional authority of the president over entry and exit to the U.S. in that case. The courts owed the president significant deference on matters of foreign policy and national security, according to an opinion written by Chief justice John Roberts.

Some commentators said the strategy differed from that of previous administrations, which had more often argued for narrow grounds of judicial review but had not routinely attempted to exclude judges from cases entirely.

"It is quite common now," said Joshua Blackman, a professor at South Texas College of Law Houston, of the practice in an email. He said he was unsure if the Justice Department had been turning to the strategy more than under previous presidents.

Blackman wrote a brief supporting Texas against the Obama administration in a legal battle over whether parents of Deferred Action for Childhood Arrivals, or DACA, recipients could be protected from deportation.

Cases in which the DOJ has made broad assertions of the authority include the travel ban litigation but also the attempt to rescind the DACA program, according to Kevin Johnson, dean of UC Davis School of Law.

The argument was also used by government attorneys with less success in litigation over the administration's now-defunct family separation policy and attempts to renegotiate the Flores settlement governing how the government must treat immigrant families and children in its custody.

"I can't say the Trump administration invokes this more than other administrations," Johnson said. "I can say it seems to make arguments whenever possible to try to bar judicial review."

He added that while most presidents attempt to probe the limits of their powers over immigration, "this president seems to be going further in terms of saying the executive has unreviewable power over immigration matters."