(CN) - The Supreme Court heard arguments Monday over whether the government can deny visas on "terrorism grounds" without further explanation, with Justice Antonin Scalia more or less laughing off the suggestion that it could not.
Today's proceedings did not directly address the problem of defining "terrorist," but the issue shadowed proceedings that again called into government oversight in the era of the War on Terror. It is also another immigration suit that will likely divide the justices along political lines.
Fauzia Din, the plaintiff at hand, is a U.S. citizen who sought a visa for her husband in 2006. He once served as a payroll clerk for the Afghan Ministry of Social Welfare during the Taliban regime and was initially denied based solely on a broad provision of the Immigration and Nationality Act that excludes applicants for a variety of terrorism-related reasons. The 9th Circuit reversed , noting that the husband had been truthful in his application.
Speaking for the government at Monday's hearing, Deputy Solicitor General Edwin Kneedler insisted that "this court has repeatedly held that the power to exclude aliens is inherent in sovereignty and necessary to defending the nation against dangers."
Justice Sonia Sotomayor seemed unconvinced. "What you're telling us is that there's no remedy whatsoever for the alien to come in and try to show someone that he's not the guy who's the terrorist," she asked.
Kneedler disagreed. "First of all, no one is excluded under the terrorism provisions of the act because their name appears in a database," the attorney said. "The databases are assembled as basically raising flags that might warrant further inquiry."
Sotomayor did not back down and immediately raised the elephant-in-the-room political question. "I have a real problem, which is that's what we were told after Sept. 11, and we have evidence that people were kept for months and months and months, and some were released after there was further probing by the courts and it was determined that people had been erroneously identified," Sotomayor said.
"So I'm not challenging good faith, but I'm just questioning how someone caught up in an administrative nightmare - you're suggesting that the wife has absolutely no interest in her marriage, in not having the government arbitrarily keep her spouse out."
Kneedler stumbled. "The, it, I think it's clear under the doctrine of consular nonreviewability, which is one subset of the recognition of Congress' broad power over the exclusion of aliens, which includes conferring the power on executive officers," he said.
Justice Stephen Breyer wondered if this meant that someone like plaintiff would have no relief even if she had "undeniable proof."
"So is it no matter what?" Breyer asked.
"Our position is that there is no judicial review," Kneedler replied.
Justice Samuel Alito restated the question, and Kneedler pointed to internal safety nets as a means of ensuring this would not happen. But Justice Ruth Bader Ginsburg was not convinced. "But that can't be," she said. "That process can't be initiated by the relative. That's an internal you have described an internal check. But as in this case, the wife, she won't know whether that check has gone."
Speaking for plaintiff Din, Mark Haddad insisted that "This court has never said that the decisions of a group, a large group of officials of the Executive Branch are somehow immune from judicial review."
Haddad also emphasized the breadth of plaintiff's challenge. "Our claim is not that her right arises from the statute and from the rights conferred by statute," the attorney said. "Our argument is that her rights arise as a constitutional matter from her marriage." He later referred to the "inherent right to marry and to raise a family, which this court has recognized. For that right to have meaning, it presupposes that the husband and wife can live together."
Justice Antonin Scalia seemed skeptical. "It would be unconstitutional, then, for Congress to eliminate the provisions of the current immigrations law which says that if the wife or the husband is in this country, the spouse can come in," he said.
Chief Justice John Roberts echoed this sentiment. "It can take a long time, depending upon the nature of the preference, for somebody to get to the front of line," Roberts said. "I mean, under some preferences, it's years after you apply. Then you get to the point where you can actually get a visa to come in. I would assume that that would not be satisfactory to you because the marital relationship would be interrupted for years."
Haddad said: "We are not dealing here with a challenge to Congress' line drawing. We're dealing with a challenge to the application."
Scalia wondered if this meant the judiciary could review any denial based on criminal history.
Haddad replied circuitously: "In every case of a criminal conviction, to take that example, there will be a conviction. It will be according to the rules of due process that this Court elaborated."
Scalia again did not buy the notion that this somehow went to constitutional marital rights. "A conviction eliminates your marriage?" he asked. "Is that you don't have to get a divorce, you just have to get convicted? That's a good deal."
As the court laughed, Haddad replied: "There is a much higher floor of due process, frankly, in the criminal arena."