Marriage grants a couple a set of rights,1 and chief among them is the ability to live with his or her spouse.2 However, this right seems to disappear if one spouse is not a U.S. citizen. Sandra Muñoz, a U.S. citizen, learned this firsthand when her husband, Luis Asencio-Cordero, an immigrant from El Salvador, was denied a visa for no clear reason.3 Firm in her belief that she enjoyed the right to live with her husband like any other U.S. citizen, Muñoz sued the State Department, demanding the reason for her husband’s denial.4 Rather than requiring the State Department to respond, the Supreme Court decided that her husband’s immigration status meant that she had never enjoyed this right to begin with.5 Recently, in Department of State v. Muñoz,6 the Supreme Court held that the right to marriage and family unity does not apply to a U.S. citizen and his or her noncitizen spouse.7 By deciding the case based on substantive, rather than procedural, due process,8 the Court seized the opportunity to rewrite the law and undermine existing fundamental marriage rights. Muñoz is troubling. It demonstrates that the current Court is doubling down on its commitment to immigration exceptionalism (its practice of not applying traditional constitutional principles in the immigration context9) and signals how willing this Court is to unravel established substantive rights.

Sandra Muñoz, a U.S. citizen, is married to Luis Asencio-Cordero, a citizen of El Salvador, and together they have a U.S. citizen son.10 In 2013, Muñoz petitioned for Asencio-Cordero to become a lawful permanent resident based on their marriage. 11 However, because Asencio-Cordero initially entered the United States without inspection and approval by an immigration officer, immigration laws required him to leave the country and apply for a visa at the U.S. consulate in El Salvador. 12 He consequently returned to El Salvador, where the consulate denied him a visa, citing 8 U.S.C. § 1182(a)(3)(A)(ii), which prohibits entry to an individual suspected of “unlawful activity.” 13 Asencio-Cordero correctly suspected that he was denied entry because the immigration officer assumed he was a member of MS-13, an international criminal gang, and that his tattoos played a role in this determination. 14 Throughout this process, Asencio-Cordero and Muñoz maintained that he had no affiliation with MS-13 and asked the consulate to reconsider, but it refused to change its decision. 15 They appealed to the State Department, providing expert testimony that their tattoos were not gang affiliated. 16

Marriage grants a couple a set of rights,1 and the most important of these is the ability to live with their spouse.2 However, this right appears to disappear if one of the spouses is not a U.S. citizen. Sandra Muñoz, an American citizen, learned this firsthand when her husband, Luis Asencio-Cordero, an immigrant from El Salvador, was denied a visa for no clear reason. 3 Firm in her belief that she enjoyed the right to live with her husband like any other American citizen, Muñoz sued the State Department, demanding that it explain the reason for the denial to her husband. 4 Rather than requiring the State Department to respond, the Supreme Court decided that her husband’s immigration status meant that she had never enjoyed this right to begin with. 5 Recently, in Department of State v. Muñoz,6 the Supreme Court held that the right to marriage and family unity does not apply to a U.S. citizen and his or her noncitizen spouse. 7 By deciding the case based on substantive, rather than procedural, due process,8 the Court seized the opportunity to rewrite the law and undermine existing fundamental marriage rights. Muñoz is troubling. This demonstrates that the current Court is doubling down on its commitment to immigration exceptionalism (its practice of not applying traditional constitutional principles in the immigration context9) and signals how willing this Court is to unravel established substantive rights.

Sandra Muñoz, a U.S. citizen, is married to Luis Asencio-Cordero, a citizen of El Salvador, and together they have a U.S. citizen son.10 In 2013, Muñoz petitioned for Asencio-Cordero to become a lawful permanent resident based on their marriage.11 However, because Asencio-Cordero initially entered the United States without inspection and approval by an immigration officer, immigration law required her to leave the country and apply for a visa at the U.S. consulate in El Salvador.12 She consequently returned to El Salvador, where the consulate denied her a visa, citing 8 U.S.C. § 1182(a)(3)(A)(ii), which bars entry to an individual suspected of “unlawful activity.”13 Asencio-Cordero correctly suspected that he was denied entry because the immigration officer assumed he was a member of MS-13, an international criminal gang, and that his tattoos played a role in this determination.14 Throughout this process, Asencio-Cordero and Muñoz maintained that he had no affiliation with MS-13 and asked the consulate to reconsider its decision, but it refused to change it.15 They appealed to the State Department, providing expert testimony that his tattoos were not affiliated with any gang.16

On the first point, the majority had difficulty “precising the nature of the right Muñoz claimed,” both as to the right itself and whether it was a substantive or procedural due process claim.38 It rejected Muñoz’s claim to a “fundamental right to marriage” because she was already married, and instead interpreted the claimed right as “something more distinct: the right to reside with her noncitizen spouse in the United States.”39 The Court was uncertain what protection this right would receive, but ultimately declined to answer this question because Muñoz did not meet Glucksberg’s second prong.40

The Court concluded that the right to immigrate a noncitizen spouse to the United States is not “deeply rooted in the history and tradition of this nation.”41 Early American history showed that immigration to the United States was “a favor [and] not a right.”42 The Court considered several immigration laws that allowed the government to expel or deny entry to non-citizens. noncitizens regardless of whether they held a citizenship. 43 “While Congress has facilitated spousal immigration, it has never made spousal immigration a matter of right.”44 There have also been no spousal exemptions to the grounds of inadmissibility. 45 Finally, several Supreme Court decisions affirmed that Congress may establish restrictions on immigration that are insulated from judicial review. 46 Taken together, this evidence demonstrated that spousal immigration is not a fundamental right protected by substantive due process. 47

As for procedural due process, the Court raised concerns about the “disturbing” implications of allowing Muñoz to raise a procedural due process right in another person’s legal proceedings. 48 This would be contrary to precedent stating that procedural due process protections do not apply to government actions that “indirectly or incidentally” affect a citizen’s rights. 49 The denial of her husband’s visa only indirectly harmed Muñoz, and she could therefore not assert due process rights in her visa proceedings. 50 The majority rejected the interpretation of Kleindienst v. Mandel. 51 A group of professors brought a case challenging the denial of a visa to a guest speaker, in order to allow citizens to bring procedural due process claims in the visa proceedings of others. 52 Thus, Muñoz’s procedural due process claim also failed. 53

Justice Gorsuch concurred in the ruling, stating that he would reverse the Ninth Circuit’s decision without addressing questions about Muñoz’s liberty interests. 54 Because Muñoz was given the reason for her husband’s visa denial in litigation, “the constitutional questions [about the right to marry] . . . no longer have any practical relevance.”55

Justice Sotomayor dissented,56 also criticizing the majority for “choosing a broad decision on marriage rather than a narrow decision on procedure.”57 The dissent argued that the Court ignored precedent and wrongly restricted the once-broad substantive right to marriage in the immigration context.58 Contrary to the majority’s historical reading, the dissent found that the constitutional right to marriage has “deep roots” in Supreme Court jurisprudence, noting that it “was one of the earliest pillars of substantive due process.”59 The dissent argued that the majority mischaracterized Muñoz’s claimed right: instead of the right to immigrate to her husband, Muñoz was asserting that the denial of her spouse’s visa “outweighed her right ‘to marry, establish a home, and raise children’ with him.” 60 As such, her claim fit squarely within the comprehensive right to “marriage and privacy,” a right that the Court has firmly recognized. 61 Justice Sotomayor argued that the constitutional right to marriage has “deep roots” in Supreme Court jurisprudence, noting that it “was one of the first pillars of substantive due process.” 61 The denial itself crippled Muñoz’s right to marriage, even if she could live outside the United States with her husband.62 Muñoz should therefore be entitled to procedural due process protections in the form of a “seemingly legitimate and bona fide reason” for the visa denial.63 Finally, Justice Sotomayor described how providing a reason is a seemingly “meager remedy” but potentially powerful way to deter arbitrary denials.64 She concluded by discussing the implications of the Muñoz Court’s failure to uphold America’s “centuries-old promise” to respect marriage, with disproportionate impacts on same-sex couples and couples without the ability or means to move to the noncitizen spouse’s home country.65

As noted in the concurring and dissenting opinions, the Court unnecessarily reached into the question of whether Muñoz had a liberty interest at stake. Possibly guided by immigration exceptionalism, the Court made three deliberate decisions in Muñoz that changed the law on fundamental rights with troubling implications outside the immigration context. First, the Court improperly subjected the fundamental right of marriage to the Glucksberg history and tradition test. Second, it framed Muñoz’s liberty interest as one specific to residing with a noncitizen spouse, rather than a broader right to marital cohabitation. Third, the Court selectively used historical evidence in contravention of its purported commitment to originalism. The Court’s willingness to deviate from its standard constitutional analysis illustrates immigration exceptionalism and its consequences: by denying rights to noncitizens, the Court will in the process shake the foundations of established constitutional law. Muñoz serves as another indication that this Court does not hesitate to eliminate fundamental constitutional rights.

First, the Court chose to apply the Glucksberg history and tradition test to Muñoz’s constitutional claim when precedent did not require it.66 This is the same tactical decision the Court made in Dobbs v. Jackson Women’s Health Organization67 to strike down abortion rights.68 But Dobbs did not require the Court in Muñoz to apply the Glucksberg test beyond abortion.69 Furthermore, Glucksberg applies to substantive due process rights and was not necessary to evaluate Muñoz’s procedural due process claim.70 Despite these clear signals from prior precedent that the Glucksberg test need not apply, the Court chose to apply it anyway. The application of Dobbs’ rights-stripping method in the Muñoz case is ominous, as it suggests that Dobbs’ reasoning now extends to new fundamental rights and potentially to all due process claims.71 If the Court has no problem subjecting other substantive rights to strict analysis under the Glucksberg test, then it is likely to invalidate them.72

Second, even assuming that the Glucksberg test was adequate, the Court used it in a remarkably limited way in identifying the right at stake. The Court interpreted the constitutional right invoked by Muñoz as it saw fit, making denying her claim seem like the logical outcome of its reading of immigration history.73 Muñoz claimed that the denial of her husband’s visa jeopardized her right to “marital cohabitation.”74 But the Court focused on her husband’s lack of U.S. citizenship and framed her claim as a “right to have her noncitizen husband enter (and remain) in the United States.”75 This strategic maneuver allowed the Court to both portray her argument as unreasonable and ignore how the right she actually invoked—the right to marital cohabitation—is “deeply rooted in the history and tradition of this nation”76 and extends into the immigration context.77

Third, the Court selectively used history to undermine Muñoz’s marital right. In search of historical evidence against the right of American citizens to live with their noncitizen spouses, the Court used Founding-era history that originalist scholar Professor Ilya Somin characterizes as “false or misleading.”78 For example, Justice Barrett cited James Madison to argue that from the beginning of American history, the admission of noncitizens was “a favor [and] not a right.”79 But Madison couched this as an assumption to make a general argument that an immigration law proposed in 1798 was unconstitutional because the federal government did not have the power to regulate prospective immigrants.80 Indeed, the idea of ​​the federal government regulating immigration was so unpopular during the Founding that this law was never used to deport anyone and expired without consequence in 1801.81 The majority knew that history at the Founding supported flexible immigration laws, writing that “[t]he United States had relatively open borders until the late nineteenth century.” 82 For a Court wedded to originalism, this open borders policy in the U.S. Constitution should support Muñoz’s constitutional right, but perhaps willing to undermine this right, the Court found a way.

Not merely mischaracterizing history, the Court abandoned all effort to construct a coherent, originalist analysis. Judge Barrett fell victim to the same flawed analysis she once rejected,83 turning away from the history of the Founding and using twentieth-century evidence, nearly a century after the Constitution’s ratification, to undermine the right asserted by Muñoz.84 She followed Justice Scalia’s lead in Kerry v. Din,85 where she “[cherry-picked] one of the most xenophobic moments in American history as” evidence against the right to family unity in immigration.86 Similarly, in Muñoz, Judge Barrett cited immigration laws passed during Congress’s “nativist and racist hostility toward Chinese immigration.”87 But her analysis of these laws lacked nuance. During these exclusionary periods, immigration laws still favored spousal cohabitation.88 For example, even in the late 19th century, when immigration laws were rife with anti-Chinese racism,89 the Court allowed some Chinese wives and children to immigrate with their husbands without obtaining their own certificates of admissibility.90

This is not the first time the Supreme Court has found ways to limit constitutional rights in the immigration context. Indeed, this case reflects the Supreme Court’s broader practice of immigration exceptionalism, in which the Court authorizes “governmental actions that would be unacceptable if applied to citizens.”91 For example, the plenary power doctrine allows “the federal government virtually unchecked power to make immigration decisions,” which served as the excuse for President Trump’s ban on admissions “from certain predominantly Muslim countries.”92 “[T]he plenary power doctrine and its vestiges”—such as non-consular review, which limited Muñoz’s ability to seek justice through the courts—make it nearly impossible to challenge discriminatory or arbitrary decisions. 93 Muñoz fits into these doctrinal trends, and in the majority opinion, Justice Barrett explicitly recognized the exceptional nature of immigration law. 94 The Court here created exceptions to fundamental rights and originalism, which raises concerns about the status of unenumerated constitutional rights as a whole.

To be sure, denying constitutional rights to noncitizens is cause enough for concern. However, decisions resulting from immigration exceptionalism can and do have ramifications for the rights of American citizens as well. The Court’s approach to immigration enforcement is instructive. The Fourth Amendment’s protection against unreasonable searches largely applies to noncitizens,95 but the Court appears to have concluded that nothing, not even racial bias, is unreasonable if applied against immigrants. When border enforcement is conducted, the Fourth Amendment’s reasonableness test strongly favors government interests over an immigrant’s constitutional rights.96 In United States v. In Brignoni-Ponce,97 for example, the Court found that the government’s interest was significant enough to permit racial profiling based on “Mexican appearance” during immigration stops.98 But as the Court itself noted, appearance is not determinative of citizenship,99 meaning that the decision also functionally narrowed Fourth Amendment protections for U.S. citizens of Mexican appearance.100 Similarly, the Court has used foreign policy and national security interests to immunize U.S. Customs and Border Protection (CBP) agents from damages lawsuits arising from cross-border shootings.101 Again, this exceptional exception for immigration officials also implicated the ability of citizens to hold CBP, and potentially all government agents, accountable.102 These cases make clear that the indirect effects of decisions restricting constitutional rights in an immigration context also easily jeopardize the rights of citizens who are not citizens of Mexican appearance.103 American citizens, making illegal immigration more difficult to control. The Muñoz case is even more troubling when it comes to marriage rights.103 Judge Barrett’s assurance that other fundamental rights remain intact104 provides little comfort. The endurance of immigration exceptionalism, combined with the Court’s willingness to use its tools to redefine established rights, suggests a murkier and more uncertain future.105

The Court’s decisions, guided by immigration exceptionalism, should sound the alarm not only with respect to the right to marriage,106 but also to other fundamental rights. Marriage is a bundle of several rights,107 but that bundle loses practical significance if the ability to live with one’s spouse can be so easily separated from the ability to marry him or her.108 The Court’s power to selectively determine the claimed right and the resulting historical analysis demonstrate the ease with which the Court vitiates core components of marriage rights. Moreover, imposing the Glucksberg test on intimate fundamental rights like marriage, as well as on procedural due process claims, risks eroding rights that cannot meet that demanding standard, especially when the Court is free to frame a right as contrary to history and tradition. Muñoz opens the door to overturning venerable and trusted cases like Obergefell and Loving, which protect the ability of spouses to live together in the state of their choice, not just the ability to be legally married.109 As the Court erects its own boundaries around the right to marry, it is unclear what will be left.